[Congressional Record Volume 158, Number 168 (Thursday, December 27, 2012)]
[Senate]
[Pages S8384-S8410]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FISA AMENDMENTS ACT REAUTHORIZATION ACT OF 2012
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will proceed to consideration of H.R. 5949, which the clerk will
report.
The legislative clerk read as follows:
A bill (H.R. 5949) to extend the FISA Amendments Act of
2008 for five years.
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senator from Oregon, Mr. Wyden, is recognized.
Mr. WYDEN. Mr. President, I thank Leader Reid for the honor of being
able to open this morning's debate. I also wish to particularly
identify with a point the leader made. There is an old saying that most
of life is just showing up. I think what the American people want--I
heard this at checkout lines in our local stores, for example, this
week--they want everybody back in Washington and going to work on this
issue, just as the leader suggested.
I think Senators know I am a charter member of what I guess you could
call the optimist caucus in the Senate. As improbable as some of these
talking heads say on TV that it is, I still think we ought to be here,
just as the leader said, working on this issue because of the
consequences.
Mr. REID. Mr. President, will my friend yield for a question?
Mr. WYDEN. I would be happy to yield to the majority leader.
Mr. REID. The distinguished Senator from Oregon and I served together
in the House of Representatives. Does the Senator remember the days
when the House voted not as a majority but as a body to come up with
how legislation should be given to the American people? Does my friend
remember that?
Mr. WYDEN. I do. The leader is being logical, and Heaven forbid that
sometimes logic break out on some of these matters. I remember when we
started out--and I joked that I had a full head of hair and rugged good
looks--the majority leader and I used to work with people on both sides
of the aisle. We would try to show up early, go home late, and, as the
leader said, focus on getting some results. I thank the leader for his
point and again for the honor of being able to start this discussion.
As I indicated, what I heard at home is that we are supposed to be
here and try to find some common ground. I know the talking heads on TV
say this is impossible and it cannot be done. First of all, as the
majority leader said, this has been done in the past. When there are
big issues and big challenges, historically the Congress will come
together and deal with it.
I am particularly concerned about some of the effects going over the
cliff will have on vulnerable senior citizens. As the Presiding Officer
knows, that is my background. We have often talked about health care
and seniors. My background was serving as codirector of the Oregon Gray
Panthers. If the reimbursement system for Medicare, in
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effect, goes over this cliff, that is going to reduce access to health
care for senior citizens across the country, and I don't believe there
are Democrats and Republicans who want that to happen.
As the majority leader indicated, finding some common ground on this
issue and backing our country away from the fiscal cliff is hugely
important and crucial to the well-being of our country. I just wanted
to start with those remarks.
Also crucial to our country is the legislation before the Senate
right now. Its name is a real mouthful.
Mr. President, I think you will recall this legislation from your
days serving on the Senate Select Committee on Intelligence. The name
of this is the Foreign Intelligence Surveillance Act Amendments Act. It
also expires in a few days. Our job is to find a way to strike the best
possible balance between protecting our country from threats from
overseas and safeguarding the individual liberties of the law-abiding
Americans we have cherished in this country for literally hundreds of
years. This task of balancing security and liberty was one of the most
important tasks defined by the Founding Fathers years and years ago,
and it is no less important for the Congress today.
As I indicated earlier, the majority leader, Leader Reid, has
accorded me the honor of beginning this debate. I will open with a very
short explanation of what the FISA Amendments Act is all about. Of
course, this is an extension of the law that was passed in 2008. It is
a major surveillance law, and it is the successor to the warrantless
wiretapping program that operated under the Bush administration, which
gave the government new authorities to collect the communications of
foreigners outside the United States. The bill before the Senate today
would extend this law for another 5 years.
There is going to be a discussion of various issues, but all of them
go to what I call the constitutional teeter-totter, which is basically
balancing security, protecting our country at a dangerous time, and the
individual liberties that are so important to all of us. I expect there
will be amendments to strengthen protections for the privacy of law-
abiding Americans.
I want to say to my colleagues and those who are listening that this
is likely to be the only floor debate the Senate has on this law
encompassing literally a 9-year period--from 2008 to 2017. So if we are
talking about surveillance authority that essentially looks to a 9-year
period, we ought to have an important discussion about it, and that is
why I am grateful to the majority leader for making today's discussion
possible.
I have served on the Senate Intelligence Committee for 12 years now,
and I can tell every Member of this body that those who work in the
intelligence community are hard-working and patriotic men and women.
They give up an awful lot of evenings, weekends, and vacations to try
to protect the well-being and security of our country. For example, we
hear a lot about a well-publicized event, such as their enormously
valuable role in apprehending bin Laden. What we don't hear about is
the incredible work they do day in and day out. They work hard to
gather intelligence, and I commend them for it as we begin this
discussion.
The job of those who work in the intelligence community is to follow
whatever laws Congress lays down as those hard-working men and women
collect intelligence. Our job here in the Congress is to make sure the
laws we pass are in line with the vision of the Founding Fathers, which
was to protect national security as well as the rights of individual
Americans.
We all remember the wonderful comment by Ben Franklin. I will
paraphrase it, but essentially Ben Franklin said: If you give up your
liberty to have security, you really don't deserve either. We owe it to
the hard-working men and women in the intelligence community to work
closely with them. We need to find the balance Ben Franklin was talking
about, and we can help them by conducting robust oversight over the
work that is being done there so members of the public can have
confidence in the men and women of the intelligence community. This
will give the public the confidence to know that as we protect our
security at a dangerous time, we are also protecting the individual
liberties of our people.
The story with respect to this debate really begins in early America
when the colonists were famously subjected to a lot of taxes by the
British Government. The American colonists thought this was unfair
because they were not represented in the British Parliament. They
argued that if they were not allowed to vote for their own government,
then they should not have to pay taxes.
We all remember the renowned rallying cry of the colonists. It was
``no taxation without representation.'' Early revolutionaries engaged
in protests against these taxes all over the country. Of course, the
most famous of these protests was the Boston Tea Party in which
colonists threw shiploads of tea into the Boston Harbor in protest of
the tax on tea.
As we recall from our history books, there were a lot of taxes on
items such as tea, sugar, paint, and paper. Because so many colonists
believed these taxes were unjust, there was a lot of smuggling going on
in the American Colonies. People would import things, such as sugar,
and simply avoid paying the tax on them.
We all remember that the King of England didn't like this very much.
He wanted the colonists to pay taxes whether they were allowed to vote
or not. So the English authority began issuing what were essentially
general warrants. They were called writs of assistance, and they
authorized government officials to enter into any house or building
they wanted in order to search for smuggled goods. These officials were
not limited to only searching in certain houses, and they were not
required to show any evidence that the place they were searching had
any smuggled goods in it. Basically, government officials were allowed
to say they were looking for smuggled goods and then would search any
house they were interested in to see if the house had some of those
smuggled goods.
An English authority's goal is to find smuggled goods. Letting
constables and customs officers search any house or building is a
pretty effective way to go out and find something. If they keep
searching enough houses, eventually they will find some smuggled goods
in one of them and seize those goods and arrest whoever lives in that
house for smuggling. Of course, the problem is that if government
officials can search any house they want, they are going to search
through the houses of a lot of people who have not broken any laws.
Mr. President, it is almost as if you decided you were going to
search everybody in your State of Rhode Island. You could go in and
turn them all upside down, shake them, and see if anything fell out.
Obviously, you would find some people who had some things in their
possession that they should not have, but that is not the way we do it
in America. In America, there has to be probable cause in order to do
something like that.
The American colonists had a huge problem with the idea that
everybody's house was going to be checked for smuggled goods on the
prospect that maybe somebody somewhere had engaged in smuggling. The
colonists said it is not OK to go around invading people's privacy
unless there is some specific evidence that they have done something
wrong. That is how people in Rhode Island and Oregon feel today. One
cannot just go out and check everybody in sight on the prospect that
maybe there is someone who has done something wrong.
Back in the colonists' time, the law said that these writs of
assistance were good until the King died. So when King George II died
and the authorities had to get new writs, many colonists tried to
challenge them in court.
In Boston, James Otis denounced this mass invasion of privacy by
reminding the court that--and we remember this wonderful comment--a
man's house is his castle. Mr. Otis described the writs of assistance
as the power that places the liberty of every man in the hands of every
petty officer. Unfortunately, the court ruled that these general orders
permitting mass searches without individual suspicion were legal, and
English authorities continued to use them. The fact that English
officials went around invading people's privacy without any specific
evidence against them was one of the fundamental complaints the
American colonists had against the British Government. So naturally our
Founding Fathers, with
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the wisdom they showed on so many matters, made it clear they wanted to
address this particular complaint when they wrote the Bill of Rights.
The Bill of Rights ensures that strong protections of individual
freedom would be included within our Constitution itself, and the
Founding Fathers included strong protections for personal privacy in
the fourth amendment. The fourth amendment states:
The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures shall not be violated and no warrant shall issue but
upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched and the
person or things to be searched.
This was a direct rejection of the authority the British had claimed
to have when they ruled the American Colonies.
The Founding Fathers said our government does not have the right to
search any house that government officials want to search even if it
helps them to do their job. Government officials may only search
someone's house if they have evidence that someone is breaking the law
and they show the evidence to a judge to get an individual warrant.
For more than 200 years, this fundamental principle has protected
Americans' privacy while still allowing our government to enforce the
law and to protect public safety.
As time passed and we entered the 20th century, advances in
technology--a whole host of technologies--gave government officials the
power to invade individual privacy in a whole host of new ways--new
ways the Founding Fathers never dreamed of--and all through those days,
the Congress and the courts struggled to keep up.
Time and time again Congress and the courts were most successful when
they returned to the fundamental principles of the fourth amendment. It
is striking. If we look at a lot of the debates we are having today
about the Internet--and the Presiding Officer has a great interest in
this; we have talked often about it--certainly the Founding Fathers
could never have envisioned tweeting and Twitter and the Internet and
all of these extraordinary technologies. But what we have seen as
technology has continued to bring us this treasure trove of information
with all of these spectacular opportunities the Founding Fathers never
envisioned is that time and time again the Congress and the courts were
most successful when they returned to the fundamental principles of the
fourth amendment.
For example, in 1928 the Supreme Court considered a famous case about
whether the fourth amendment made it illegal for the government to
listen to an individual's phone conversations without a warrant. Once
again, dating almost to the precedent about the colonists and
smuggling, the 1928 case was about smuggling--specifically,
bootlegging. The government argued then that as long as it did the
wiretapping remotely without entering an individual's house, the fourth
amendment would not apply.
Now, Justice Louis Brandeis wrote what has come to be seen in history
as an extraordinary dissent, a brilliant dissent, and he argued that
this was all wrong; that the fourth amendment was about preventing the
government from invading Americans' privacy regardless of how the
government did it.
I am just going to spend a couple of minutes making sure people see
how brilliant and farsighted Justice Brandeis was in how his
principles--the principles he talked about in 1928--are as valid now as
they were then.
Justice Brandeis said:
When the Fourth and Fifth Amendments were adopted . . .
force and violence were then the only means known to man by
which a Government could directly effect self-incrimination.
. . . Subtler and more far-reaching means of invading privacy
have [in effect] now become available to the Government.
Discovery and invention have made it possible for the
Government . . . to obtain disclosure in court of what is
whispered in the closet.
Justice Brandeis goes on to say:
In the application of a Constitution, our contemplation
cannot be only of what has been but of what may be. The
progress of science in furnishing the Government with means
of espionage is not likely to stop with wiretapping. Ways may
someday be developed by which the Government, without
removing papers from secret drawers, can reproduce them in
court, and by which it will be enabled to expose to a jury
the most intimate occurrences of the home. ``That places the
liberty of every man in the hands of every petty officer''
was said by James Otis of much less intrusions than these.
Justice Brandeis goes on to say:
The principles--
The principles, literally--
[behind the Fourth Amendment] affect the very essence of
constitutional liberty and security. They . . . apply to all
invasions on the part of the Government and its employees of
the sanctities of a man's home and the privacies of life. It
is not the breaking of his doors, and the rummaging of his
drawers that constitutes the essence of the offense; but it
is the invasion of his indefeasible right of personal
security, personal liberty and private property, where the
right has never been forfeited by his conviction of some
public offense.
Justice Brandeis closes this remarkable dissent saying:
. . . The evil incident to invasion of the privacy of the
telephone is far greater than that involved with tampering
with the mails. . . . As a means of espionage, writs of
assistance and general warrants are but puny instruments of
tyranny and oppression when compared with wiretapping.
The protection guaranteed by the amendments Justice Brandeis was
referring to--the fourth and fifth amendments--is broad in scope.
The makers of our Constitution undertook to secure
conditions favorable to the pursuit of happiness. They
recognized the significance of man's spiritual nature, of his
feelings, and of his intellect. They knew that only a part of
the pain, pleasure and satisfaction of life are to be
found in material things. They sought to protect Americans
and their beliefs, their thoughts, their emotions, and
their sensations. They conferred, as against the
Government, the right to be let alone--the most
comprehensive of rights, and the right most valued by
civilized men. To protect that right, every unjustifiable
intrusion by the Government on the privacy of the
individual, whatever the means employed, must be deemed a
violation of the Fourth Amendment.
Because I have outlined Justice Brandeis's dissent on several issues,
I want to make sure those last two sentences are clear.
Justice Brandeis said that the right of the people to be left alone
by their government is ``the most comprehensive of rights''--the most
comprehensive of rights, said Justice Brandeis--and, he said, ``the
right most valued by civilized men.'' And the Justice said that
intrusions on individual privacy, ``whatever the means employed, must
be deemed a violation of the Fourth Amendment.''
The reason I have outlined Justice Brandeis's views on this issue is
that Justice Brandeis's views didn't prevail in 1928. Back in 1928 they
thought they were dealing with high-tech surveillance. But suffice it
to say that his views were eventually adopted by the full Supreme
Court. That is why I believe it is so important that as we look to
today's debate--really an opportunity to update the way in which that
careful balance, the constitutional teeter-totter: security, well-being
of all of us on this side and individual liberties on this side--it is
so important to recognize what Justice Brandeis said about the value of
getting it right when it comes to liberty, when it comes to individual
freedom.
One of the reasons there are amendments being offered by Senators to
this legislation at a time when we are dealing with these crucial
issues about the fiscal cliff, the question of the budget, taxes, and,
as I mentioned, senior citizens being able to see a doctor--those are
crucial issues, but this legislation, the FISA Amendments Act, is also
a crucial piece of legislation, and that is why Senators will be
offering amendments in order to strike the best possible balance
between security and liberty.
When the Foreign Intelligence Surveillance Act, which is often known
as FISA--Senators and those listening will hear that discussion almost
interchangeably; the abbreviated name is FISA--when it was written in
1978, Congress applied Justice Brandeis's principles to intelligence
gathering. The Congress, when they wrote the original FISA legislation
in 1978, really said that Justice Brandeis got it right with respect to
how we ought to gather intelligence. So the original FISA statute
stated that if the government wants to collect an American's
communications for intelligence purposes, the government must go to a
court, show evidence that the American is a terrorist or a spy, and get
an individual
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warrant. This upheld the same principle the Founding Fathers fought for
in the revolution, it is the same principle enshrined in the Bill of
Rights, and it said that government officials are not allowed to invade
Americans' privacy unless they have specific evidence and an individual
warrant.
After 9/11, the Bush administration decided it would seek additional
surveillance authorities beyond what was in the original Foreign
Intelligence Surveillance Act statute. To our great regret, instead of
asking the Congress to change the law, the Bush administration
developed a warrantless wiretapping program--let me repeat that, a
warrantless wiretapping program--that operated in secret for a number
of years. When this became public--as I have said on this floor before,
these matters always do become public at some point--when it became
clear that the Bush administration had developed this warrantless
wiretapping program, there was a huge uproar across the land. I
remember how angry many of my constituents were when they learned about
the warrantless wiretapping program, and I and a lot of other Senators
were very angry as well.
As has the Presiding Officer, I have been on the Intelligence
Committee, and I have been a member for 12 years, but the first time I
heard about the warrantless wiretapping program--the first time I heard
about it--was when I read about it in the newspapers. It was in the New
York Times before I, as a member of the Senate Select Committee on
Intelligence, knew about it.
There was a very heated debate. Congress passed the FISA Amendments
Act of 2008, and that was to replace the warrantless wiretapping
program with new authorities for the government to collect the phone
calls and e-mails of those believed to be foreigners outside the United
States.
The centerpiece of the FISA Amendments Act is a provision that is now
section 702 of the FISA statute. Section 702 is the provision that gave
the government new authorities to collect the communications of people
who are believed to be foreigners outside the United States. This was
different than the original FISA statute. Unlike the traditional FISA
authorities and unlike law enforcement wiretapping authorities, section
702 of the FISA Amendments Act does not involve obtaining individual
warrants. Instead, it allows the government to get what is called a
programmatic warrant. It lasts for an entire year and authorizes the
government to collect a potentially large number of phone calls and e-
mails, with no requirement that the senders or recipients be connected
to terrorism, espionage--the threats we are concerned about.
If that sounds familiar, it certainly should. General warrants that
allowed government officials to decide whose privacy to invade were the
exact sort of abuse that the American colonists protested over and led
the Founding Fathers to adopt the fourth amendment in the first place.
For this reason, section 702 of the FISA law contains language that is
specifically intended to limit the government's ability to use these
new authorities to spy on Americans.
Let me emphasize that because that is crucial to this discussion and
the amendments that will be offered. It is never OK--never OK--for
government officials to use a general warrant to deliberately invade
the privacy of a law-abiding American. It was not OK for constables and
Customs officials to do it in colonial days, and it is not OK for the
National Security Agency to do it today. So if the government is going
to use general warrants to collect people's phone calls and e-mails, it
is extremely important to ensure that this authority is only used
against foreigners overseas and not against law-abiding Americans.
Despite what the Acting President pro tempore and the Senate may have
heard, this law does not actually prohibit the government from
collecting Americans' phone calls and e-mails without a warrant. The
FISA Amendments Act states--and I wish to quote because there have been
a lot of inaccuracies and misrepresentations on this--the FISA
Amendments Act states that acquisitions made under section 702 may not
``intentionally target'' a specific American and may not
``intentionally acquire'' communications that are ``known at the time
of acquisition'' to be wholly domestic.
But the problem with that is, it still leaves a lot of room for
circumstances under which Americans' phone calls and e-mails--including
purely domestic phone calls and e-mails--could be swept up and reviewed
without a warrant. This can happen if the government did not know
someone is American or if the government made a technical error or if
the American was talking to a foreigner, even if that conversation was
entirely legitimate.
I am not talking about some hypothetical situation. The FISA Court,
in response to a concern I and others have had, has already ruled at
least once that collection carried out by the government under the FISA
Amendments Act violated the fourth amendment to the Constitution.
Senate rules regarding classified information prevent me from
discussing the details of that ruling or how many Americans were
affected, over what period of time, but this fact alone clearly
demonstrates the impact of this law on Americans' privacy has been real
and it is not hypothetical.
When the Congress passed the FISA Amendments Act 4 years ago, it
included an expiration date. The point of the expiration date was to
ensure that Congress could review these authorities closely and the
Congress could decide whether protections for Americans' privacy are
adequate or whether they need to be modified.
Again, go back to what I have described as the constitutional teeter-
totter--our job: balance the need of the government to collect
information, particularly with respect to what can be threats coming
from overseas, with the right of individual Americans to be left alone.
It is that balance we are discussing. If the Congress finds it is
unbalanced, the Congress has a responsibility to step up and figure out
how to make the appropriate changes in the law to ensure that both
security and privacy are being protected simultaneously.
Unfortunately, the Congress and the public--the American people--do
not currently have enough information to adequately evaluate the impact
of the law we are debating on Americans' privacy. There are a host of
important issues about the law's impact that intelligence officials
have simply refused to answer publicly.
I am going to now spend a few minutes outlining the big questions I
believe Americans deserve answers to. Certainly, the Congress has to
have answers to these questions in order to do our job--our job of
doing robust oversight over this law and over intelligence, which, as I
said a bit ago, is exactly what the hard-working men and women in the
intelligence community need and deserve in order to do their job in a
way that will generate confidence among the American people.
First, if we want to know what kind of impact this law has had on
Americans' privacy, we probably want to know roughly how many phone
calls and e-mails that are to and from Americans have been swept up by
the government under this authority. Senator Mark Udall, our
distinguished colleague from Colorado and a great addition to the
Intelligence Committee--he and I began the task of trying to ferret out
this information some time ago. Over a year and a half ago, Senator
Mark Udall and I asked the Director of National Intelligence how many
Americans have had their communications collected under this law; in
effect, swept up by the government under these authorities.
The response was it is ``not reasonably possible to identify the
number of people located in the United States whose communications may
have been reviewed under the authority of the'' FISA Amendments Act.
That is how the government responded to Senator Udall and me.
If you are a person who does not like the idea of government
officials secretly reviewing your phone calls and e-mails, you probably
do not find that answer particularly reassuring. But suffice it to say,
the situation got worse from there.
In July of this year, I and a tripartisan group of 12 other Senators,
including Senator Mark Udall, our colleague from Utah, Senator Mike
Lee, Senator Durbin--I am pleased to be joined by Senator Merkley, who
has been vital in this coalition, this
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tripartisan coalition to get the best possible balance between security
and liberty--he was a signer of the letter; Senator Paul of Kentucky,
who has also been an outspoken advocate of striking a better balance
between privacy and liberty was a signer; Senator Coons, Senator
Begich, Senator Bingaman, Senator Tester, Senator Sanders, Senator Tom
Udall, Senator Cantwell--all of us joined in writing another letter to
the Director of National Intelligence asking additional questions about
the impact of this law on Americans' privacy.
We asked the Director if he could give us even a rough estimate--just
a rough estimate--in other words, there has been discussion both in the
press and in the intelligence community: This group of Senators is
asking for something impossible. This group of Senators is asking for
an exact count of how many Americans are being swept up under this FISA
authority, their calls and e-mails reviewed. I wish to emphasize we
just said, as a tripartisan group of Senators: We would just like a
rough estimate--use any approach they want in terms of giving us an
assessment of how many Americans' communications have been swept up in
this way. Is it hundreds? Is it hundreds of thousands? Is it millions?
The tripartisan group of Senators basically was just asking for a
report, the kind of information that is a prerequisite to doing good
oversight. Frankly, I think when we talk about oversight and we cannot
even get a rough estimate of how many law-abiding Americans have had
their communications swept up under this law, if they do not have that
kind of information, oversight--the idea of robust oversight--it ought
to be called toothless oversight if they do not have that kind of
information.
The Director declined to publicly answer this question. So our
tripartisan group and others continued. We asked the Director if anyone
else has already done such an estimate. We did not ask about doing
anything new. The intelligence community said: Oh, my goodness. It will
be so hard to give even a rough estimate. So we said: OK. Just tell us
if anyone else has already done such an estimate. The Director declined
to publicly answer this question as well.
Right at the heart of this discussion is, if we are serious about
doing oversight, the Congress ought to be able to get a straightforward
answer to the question: Have any estimates been done already as to
whether law-abiding Americans have had their communications swept up
under the FISA authority?
Second, if we want to understand this law's impact on Americans'
privacy, we probably want to know whether any wholly domestic
communications have been collected under the FISA authorities. When we
are talking about wholly domestic communications, we are talking about
one person in the United States talking to another person who is also
in the United States. This law contains a number of safeguards that
many people thought would prevent the warrantless collection of wholly
domestic U.S. communications, and I think the Congress ought to know
whether these safeguards are working.
So our tripartisan group of Senators dug into this issue as well, and
we asked the Director back in July if he knew whether any wholly
domestic U.S. communications had been collected under the FISA
Amendments Act. So here we are talking about wholly domestic
communications from one American, for example, in Rhode Island, to
another American in the home State of Senator Merkley and myself. I am
disappointed to say the Director declined to answer this question as
well.
Let's contemplate that for a moment. A tripartisan group of
Senators--Democrats, Republicans, Independents--asked if the government
knew whether any wholly domestic communications had been collected
under the FISA law, and the head of the intelligence community declined
to publicly provide a simple yes or no response to that question.
That means the FISA Amendments Act involves the government going to a
secret court on a yearly basis and getting programmatic warrants to
collect people's phone calls and e-mails, with no requirement that
these communications actually belong to people involved with terrorism
or espionage. This authority is not supposed to be used against
Americans, but, in fact, intelligence officials say they do not even
know how many American communications they are actually collecting. The
fact is, once the government has this pile of communications, which
contains an unknown but potentially very large number of Americans'
phone calls and e-mails, there are surprisingly few rules about what
can be done with it.
For example, there is nothing in the law that prevents government
officials from going to that pile of communications and deliberately
searching for the phone calls or e-mails of a specific American, even
if they do not have any actual evidence that the American is involved
in some kind of wrongdoing, some kind of nefarious activity.
Again, if it sounds familiar, it ought to because that is how I began
this discussion, talking about these sorts of general warrants that so
upset the colonists. General warrants allowing government officials to
deliberately intrude on the privacy of individual Americans at their
discretion was, as I have outlined this morning, the abuse that led
America's Founding Fathers to rise up against the British. They are
exactly what the fourth amendment was written to prevent.
If government officials wanted to search an American's house or read
their e-mails or listen to their phone calls, they are supposed to show
evidence to a judge and get an individual warrant. But this loophole in
the law allowed government officials to make an end run around
traditional warrant requirements and conduct backdoor searches for
American's communications.
Now, let me be clear. If the government has clear evidence that an
American is engaged in terrorism, espionage--serious crimes--I think
the government ought to be able to read that person's e-mails and
listen to that person's phone calls. I believe and have long felt that
is an essential part of protecting public safety. But government
officials ought to be required to get a warrant. As the Presiding
Officer knows, there are even emergency provisions--and I support these
strongly as well--that allow for an emergency authorization before you
get the warrant, in order to protect the well-being of the American
people.
So what we want to know at this point, if you are trying to decide
whether the constitutional teeter-totter is being properly balanced or
is out of whack, you want to know whether the government has ever taken
advantage of this backdoor search loophole and conducted a warrantless
search for the phone calls or e-mails of specific Americans. So when
the tripartisan group wrote to the Director of National Intelligence,
we asked him to state whether the intelligence community has ever
deliberately conducted a warrantless search of this nature. The
Director declined to respond to this as well--declined to respond to a
tripartisan group of Senators simply asking: Has the intelligence
community ever deliberately conducted a warrantless search of this
nature?
If anybody is kind of keeping score on this, you will notice that the
Director refused to publicly answer any of the questions that were
asked in our letter. So if you are looking for reassurance that the law
is being carried out in a way that respects the privacy of law-abiding
American citizens, you will not find it in his response.
I should note that the Director did provide additional responses in a
highly classified attachment to his letter. This attachment was so
highly classified that I think of the 13 Senators who signed the letter
of the tripartisan group, 11 of those 13 Senators do not even have
staff who have the requisite security clearance to read it. So
naturally that makes it hard for those Senators, let alone the public,
to gain a better understanding of the privacy impact of the law.
Several Senators sent the Director a followup letter last month again
urging him to provide public answers to what we felt were
straightforward questions--really sort of a minimum set of responses
that the Congress needs to do oversight. The Director refused that as
well.
Intelligence officials do not deny the facts I have outlined this
morning.
[[Page S8389]]
They still insist they are already protecting innocent Americans'
privacy. There is a lot of discussion about how this program is
overseen by the secret FISA Court, how the court is charged with
ensuring that all of the collections carried out under this program are
constitutional.
To respond to those arguments, I would note that under the FISA
Amendments Act, the government does not have to get the permission of
the FISA Court to read particular e-mails or listen to particular phone
calls. The law simply requires the court to review the government's
collection and handling procedures on an annual basis. There is no
requirement in the law for the court to approve the collection and
review of individual communications even if government officials set
out to deliberately read the e-mails of an American citizen.
Even when the court reviews the government's collection and handling
procedures, it is important to note that the FISA Court's ruling are
made entirely in secret. It may seem hard to believe, but the court's
rulings that interpret major surveillance law and even the U.S.
Constitution in significant ways--these are important judgments--the
public has absolutely no idea what the court is actually saying. What
that means is that our country is in effect developing a secret body of
law so that most Americans have no way of finding out how their laws
and their Constitution are being interpreted. That is a big problem.
Americans do not expect to know the details of how government agencies
collect information, but Americans do expect those agencies to operate
within the boundaries of publicly understood law. Americans need and
have a right to know how those laws and the Constitution are
interpreted so they can ratify the decisions that elected officials
make on their behalf. To put it another way, I think we understand that
Americans know that intelligence agencies sometimes have to conduct
secret operations, but the American people do not expect these agencies
to rely on secret law.
I think we understand that the work of the intelligence community is
so extraordinarily important. I see the distinguished chair of the
committee here. Every member of our committee--every member--feels that
it is absolutely critical to protect the sources and methods by which
the work of the intelligence community is being done. But we do not
expect the public to, in effect, just accept secret law.
When you go to your laptop and you look up a law, it is public. It is
public. But what I have described is a growing pattern of secret law
that makes it harder for the American people to make judgments about
the decisions that are being made by those in the intelligence
community. I think that can undermine the confidence the public has in
the important work being done by the intelligence community.
If you think back to colonial times, when the British Government was
issuing writs of assistance and general warrants, the colonists were at
least able to challenge those warrants in open court. So when the
courts upheld those writs of assistance, ordinary people could read
about the decisions, and people such as James Otis and John Adams could
publicly debate whether the law was adequately protecting the privacy
of law-abiding individuals. But if the FISA Court were to uphold
something like that today, in the age of digital communications and
electronic surveillance, it could conceivably pass entirely unnoticed
by the public, even by those people whose privacy was being invaded.
Since 2008 other Senators and I have urged the Department of Justice
and the intelligence community to establish a regular process for
reviewing, redacting, and releasing the opinions of the FISA Court that
contain significant interpretation of the law so that members of the
public have the opportunity to understand what their government thinks
their law and their Constitution actually mean. I am not talking about
a need to release every single routine decision made by the court.
Obviously, most of the cases that come before the court contain
sensitive information about intelligence sources and methods that are
appropriate to keep secret.
I do not take a backseat to any Member of this body in terms of
protecting the sources and methods of those in the intelligence
community doing their important work, but the law itself should never
be secret. What Federal courts think the law and the fourth amendment
to the Constitution actually mean should never be a secret from the
American people, the way it is today.
I am going to wrap up. I see Senator Merkley and Senator Feinstein
here. I have a couple of additional points.
I was encouraged in 2009 when the Obama administration wrote to
Senator Rockefeller and myself to inform us that they would be setting
up a process for redacting and releasing those FISA Court opinions that
contained significant interpretations of law. Unfortunately, over 3
years later, this process has produced literally zero results. Not a
single redacted opinion or summary of FISA Court rulings has been
released. I cannot even tell if the administration still intends to
fulfill this promise. I often get the feeling they are hoping people
will go away and forget that the promise was made in the first place.
I should note, in fairness, that while the administration has so far
failed to fulfill this promise, the intelligence community has
sometimes been willing to declassify specific information about the
FISA Court's rulings in response to requests from myself and other
Senators. For example, in response to a request I made this past
summer, the intelligence community acknowledged that on at least one
occasion--this was an acknowledgement from the intelligence community.
The intelligence community acknowledged that at least on one occasion,
the FISA Court had ruled that collection carried out by the government
under the FISA Amendments Act violated the fourth amendment to the
Constitution. I think that is an important point to remember when you
hear people saying the law is adequately protecting Americans' privacy.
I would also note that on this point, partially declassified internal
reviews of the FISA amendments collection act have noted that certain
types of compliance issues continue to occur--continue to occur.
I have two last points. Beyond the fact that the programmatic
warrants authorized by the FISA Amendments Act are approved by a secret
court, the other thing that intelligence officials cite is that there
are ``minimization'' procedures to deal with the issues that those of
us who are concerned about privacy rights have raised. This is an odd
term, but it simply refers to rules for dealing with information about
Americans.
Intelligence officials will tell you that these are pretty much
taking care of everything, and if there are not enough privacy
protections in the law itself, minimization procedures provide all of
the privacy protections any reasonable person could ever want or need.
These minimization procedures are classified, so most people are never
going to know what they say. As someone who has access to the
minimization procedures, I will make it clear that I think they are
certainly better than nothing, but there is no way, colleagues, these
minimization procedures ought to be a substitute for having strong
privacy protections written into the law.
I will close with the reason I feel so strongly about this, which is
that senior intelligence officials have sometimes described these
handling procedures in misleading ways and make protections for
Americans' privacy sound stronger than they actually are. I was
particularly disappointed when the Director of NSA did this recently at
a large technology conference.
In response to a question about the National Security Agency's
surveillance of Americans, General Alexander referenced the FISA
Amendments Act and talked in particular about the minimization
procedures that applied to the collection of U.S. communications.
Understand that this was at a big, open technology conference. General
Alexander said that when the NSA sweeps up communications from a ``good
guy,'' which I think we all assume is a law-abiding American, the NSA
has ``requirements from the FISA court and the Attorney General to
minimize that, which means nobody else can see it unless there is a
crime that is being committed.'' Now, anybody who hears that phrase
says: That
[[Page S8390]]
is pretty good. I imagine that is what people in that technology
meeting and the conference call wanted to hear. The only problem is
that it is not true. It is not true at all. The privacy protections
provided by these minimization procedures are simply not as strong as
General Alexander made them out to be.
In October, a few months after General Alexander made the comments,
Senator Udall and I wrote him a letter asking him to please correct the
record. The first paragraphs of the letter were:
Dear General Alexander:
You spoke recently at a technology convention in Nevada, at
which you were asked a question about NSA collection of
information about American citizens. In your response, you
focused in particular on section 702 of the FISA Amendments
Act of 2008, which the Senate will debate later this year. In
describing the NSA's collection of communications under the
FISA Amendments Act, you discussed rules for handling the
communications of U.S. persons.
General Alexander said:
We may, incidentally, in targeting a bad guy hit on
somebody [sic] from a good guy, because there's a discussion
there. We have requirements from the FISA Court and the
Attorney General to minimize that, which means nobody else
can see it unless there's a crime that's been committed.
Senator Udall and I wrote:
We believe that this statement incorrectly characterized
the minimization requirements that apply to the NSA's FISA
Amendments Act collection, and portrayed privacy protections
for Americans' communications as being stronger than they
actually are. We urge you to correct this statement, so that
Congress and the public can have a debate over the renewal of
this law that is informed by at least some accurate
information about the impact it has had on Americans'
privacy.
General Alexander wrote us back a few weeks later and said that, of
course, that is not exactly how minimization procedures work and, of
course, the privacy protections aren't as strong as that.
If anyone would like to read his letter, I put it up on my Web site.
I don't know why General Alexander described the minimization
procedures the way he did. It is possible he misspoke. It is possible
he was mistaken. But I certainly would be more sympathetic to these
arguments that all these privacy protections are being taken care of if
it hadn't taken Senator Udall and I making a push to get the NSA to
correct the record with respect to these minimization procedures.
Frankly, I am not sure, if there hadn't been a big push by Senators who
had questions about what was said at that technology conference, I am
not sure the NSA would have ever corrected what they originally said
about minimization.
So minimization procedures are not a bad idea, but the suggestion
that we don't need privacy protections written into the law because of
them is a bad idea.
Finally, at that conference, General Alexander stated: ``The story
that we [the NSA] have millions or hundreds of millions of dossiers on
people is absolutely false.''
I have been on the Senate Intelligence Committee for 12 years, and I
don't know what the term ``dossier'' means in that context.
So in October, Senator Udall, a member of the committee, and I asked
the Director to clarify that statement. We asked:
Does the NSA collect any type of data at all on `millions
or hundreds of millions of Americans'?
I think that is a pretty straightforward question. If we are asking
whether the NSA is doing a good job protecting Americans' privacy, it
is one of the most basic questions of all. If General Alexander saw
fit, and he was the one who said they don't keep millions of dossiers,
General Alexander could have answered our question about whether they
were keeping these dossiers with a simple yes or no.
Instead, the Director of the NSA replied that while he appreciated
our desire to have responses to the questions on the public record, he
would not provide a public answer.
Again, the Director of the NSA said: ``The story that we [the NSA]
have millions or hundreds of millions of dossiers on people is
absolutely false.''
So two members of the committee asked: ``Does the NSA collect any
type of data at all on `millions or hundreds of millions of Americans,'
'' and the Director refused to respond.
At this point, I close by way of saying I believe the FISA Amendments
Act has enabled the government to collect useful intelligence
information, and my goal is to reform the legislation. The two specific
things I want to do are, first, require the intelligence community to
provide more information about the impact of the FISA Amendments Act on
Americans' privacy and, second, to make improvements to privacy
protections so we can readily see where they are most needed.
So there will be several amendments that will be offered. The
amendment I will be offering is sponsored by 15 Members of the Senate.
It simply says the Director of the National Intelligence Agency should
submit a report to the Congress on the privacy impact of the FISA
Amendments Act.
This amendment would require the report to state whether any estimate
has been done, how many U.S. communications have been collected under
the authority, and to provide any estimates that exist. I wish to
emphasize this amendment would not require any entity to actually
conduct such an estimate. The Director would be required only to
provide any estimates that have already been done and, if no estimates
exist, the Director could say so.
Additionally, the amendment would require the report to state whether
any wholly domestic communications have been collected under the FISA
Amendments Act and whether any government agencies have ever conducted
any warrantless, backdoor searches. These are straightforward
questions, and they are obviously relevant to understanding the scope
of the law's impact on privacy.
The report would address General Alexander's confusing statements by
requiring the intelligence community to simply state whether the NSA
has collected any personally identifiable data on more than 1 million
Americans. The Congress and the country deserve an answer to this
question as well.
The amendment does not force the declassification of any information.
The amendment gives the President full discretion to redact as much
information from the public version of the report as he deems
appropriate, as long as he tells the Congress why.
To repeat, the amendment doesn't require the intelligence community
to conduct a new estimate, and the President would have full discretion
to decide whether any information should be made public.
I offer this amendment because I believe every Member of Congress
ought to have the answers to these questions. If your constituents are
similar to mine and Senator Merkley's, they expect us to give
government agencies the authority to protect our country and to gather
intelligence on important topics, but they also expect us to conduct
vigorous oversight on what those agencies are doing.
It is, I guess, a temptation to say: I don't know what is going on,
so I will let somebody else look at the privacy issues and go from
there. I don't think that is good oversight.
To me, at a minimum, if we don't pass a requirement that we get a
rough accounting of whether there has even been an estimate done with
respect to how many law-abiding Americans have been swept up under
these FISA authorities, my view is that oversight becomes toothless,
and that is not what our obligation over these issues is all about.
There will be other important amendments as well. Senator Merkley has
one that I think is particularly important because it goes to this
question of secret laws. Senator Leahy seeks to promote additional
accountability as well with his important amendment. My colleague
Senator Paul will be offering an amendment, an important amendment as
well, with respect to reasonable searches and seizures under the fourth
amendment.
We obviously have crucial work to do with respect to the fiscal cliff
issue in the next few days. We talked earlier when the majority leader
was here about the impact of the budget and taxes, senior citizens not
being able to see doctors. It is crucial work, and I continue to be
part of that optimists caucus in the Senate, believing we can still
find some common ground in these last few days on the fiscal cliff and
avoid going over the fiscal cliff.
That is crucial work, but striking the right balance between
protecting our country and protecting our individual liberties is also
important work. For
[[Page S8391]]
that reason, I wanted to walk through the history of the FISA
Amendments Act this morning, describe why it was so important,
particularly for us to get even an accounting.
Remember, this doesn't disrupt any operations in the intelligence
community. This is just an accounting of how many law-abiding Americans
had their communications swept up under this law. That work is crucial
too.
For that reason, I hope that on a bipartisan basis, the amendments
will be viewed favorably by the Senate when we begin voting. Thank you
for your indulgence for being part of this discussion, presiding in the
chair, and with special thanks to the distinguished majority leader who
gave me the opportunity to open this discussion about FISA this
morning.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I would like to make an opening
statement, as the committee chair, on the bill that is before the
Senate.
This bill is a simple bill. This is a House bill that extends,
reauthorizes the FISA Amendments Act. FISA is the Foreign Intelligence
Surveillance Act. The House bill reauthorizes the FISA Amendments Act
for 5 years, until December 31, 2017. That is all it does.
Without Senate action, these authorities to collect intelligence
expire in 4 days. That is the reason it is the House bill before us,
and that is the reason I urge this body to vote no on all amendments
and send this reauthorization to the President where it will be signed.
If it goes past the 31st, the program will be interrupted.
This is important. Reauthorization of the FISA Amendments Act has the
support of the Director of National Security, Jim Clapper; the Attorney
General, Eric Holder; and other national security officials who have
made clear the importance of this legislation.
Following my remarks, I would like to enter letters into the Record
from the Attorney General and the Director of National Intelligence,
saying this reauthorization is the highest legislative priority of the
Intelligence Community.
Let me explain what the expiring provisions of the FISA Amendments
Act do. I assume that is agreeable with the President that these
letters go into the Record following my remarks.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
(See exhibit 1.)
Mrs. FEINSTEIN. Let me describe what these provisions do and why they
are necessary to reauthorize.
What will expire on December 31 is title VII of FISA, which is called
the FAA, the FISA Amendments Act. This authorizes the executive branch
of the government to go to the FISA Court, which is a special court--
and most people don't know this--of 11 Federal District Court judges
appointed by the Supreme Court who review government requests for
surveillance activities and obtain annual approval for a program to
conduct surveillance on non-U.S. persons, in other words, surveillance
on individuals who are not U.S. citizens or lawful permanent residents
and who are located outside the United States.
Under current law, the Attorney General and the Director of National
Intelligence may submit an application to the FISA Court. I call this a
program warrant. It identifies the category of foreign persons against
whom the government seeks to conduct surveillance. This application is
accompanied by targeting and minimization procedures that establish how
the government will determine that someone targeted for surveillance is
located outside the United States; and, secondly, how it is going to
minimize the acquisition and retention of any information concerning
U.S. persons who are accidentally caught up in this.
If the FISA Court finds the procedures to be consistent with both law
and the fourth amendment, they enter an order authorizing this kind of
surveillance for 1 year--and the judges on the FISA Court have found
both--and they have authorized the program to continue.
The process that follows allows the intelligence community to collect
the communications of international terrorists and other non-U.S.
persons who are located outside the country by, for example, acquiring
electronic communications such as phone calls and e-mails sent to or
from a phone number or an e-mail address known to be used by the person
under surveillance.
Without this authority, the intelligence community would need to
return to the process of going to the FISA Court in every individual
case involving collection directed at a non-U.S. person and to prove in
each case there is probable cause to believe the individual is part of
or working for a foreign power or a terrorist group.
Now, here is the question: Can the government use section 702 of FISA
to target a U.S. person? The answer to that is no. The law specifically
prohibits the use of section 702 authorities to direct collection
against--that means target--U.S. persons. So no one should think the
targets are U.S. persons.
This prohibition is codified in section 702(b), which states that
surveillance authorities may not be used--and let me quote the law--
``to intentionally target any person known at the time of acquisition
to be located in the United States or to intentionally target a United
States person reasonably believed to be located outside the United
States.''
Now, if the government wants to engage in electronic surveillance
targeting a U.S. person for foreign intelligence purposes, it must go
back to the FISA Court and it must get a specific order from that
court. In an emergency, the surveillance can commence before the court
order is issued, but the government still must have probable cause to
believe the U.S. person is an agent of a foreign power.
Let me take a few moments to address the principal concerns some of
my colleagues have expressed about this legislation, which is the
effect this one provision--Section 702--may have on the privacy and
civil liberties of U.S. persons. And let me say that 13 members of the
Intelligence Committee who have voted in favor of the extension of the
FISA Amendments Act--and against previous amendments from Senator
Wyden--do not believe privacy is being eliminated under the law this
bill would reauthorize.
As I have discussed, section 702 establishes a framework for the
government to acquire foreign intelligence by conducting electronic
surveillance on non-U.S. persons who are reasonably believed to be
located outside of the United States under a program that is annually
approved by the court. The privacy concerns stem from the potential for
intelligence collection directed at non-U.S. persons located abroad to
result in the incidental collection of or concerning communications of
U.S. persons. I understand these concerns, and I would like to explain
why I believe the existing provisions are adequate to address them.
First, this section is narrowly tailored to ensure that it may only
be used to target non-U.S. persons located abroad. It includes specific
prohibitions on targeting U.S. persons or persons inside the United
States and prohibitions on engaging in so-called reverse-targeting,
which means targeting a non-U.S. person abroad when the real purpose is
to obtain their communications with a person inside the United States.
That is prohibited.
Anytime the intelligence community is seeking to collect the
communications of an American, it has to demonstrate that it has
probable cause and get an individual FISA Court order.
Second, Congress recognized at the time this amendments act was
enacted that it is simply not possible to collect intelligence on the
communications of a person of interest without also collecting
information about the people with whom and about whom that person
communicates, including, in some cases, non-targeted U.S. persons. The
concern was addressed when the FAA was originally drafted.
Specifically, in order to protect the privacy and civil liberty of U.S.
persons, Congress mandated that for collection conducted under 702, the
Attorney General adopt and the FISA Court review and approve procedures
that minimize the acquisition, retention, and dissemination of
nonpublic information concerning unconsenting U.S. persons.
Third, numerous reports and assessments from the executive branch
that I will describe in a moment provide the committee with extensive
visibility
[[Page S8392]]
into how these minimization procedures work and enable both the
Intelligence and the Judiciary Committees to see how these procedures
are effective in protecting the privacy and civil liberties of U.S.
persons.
Oversight by the legislative, judicial, and executive branch of the
government over the past 4 years has been very thorough. There are
procedures and requirements in place under current law that provide
protection for the privacy and civil liberties of U.S. persons. Those
entrusted with the responsibility to collect the oversight, the
committees of jurisdiction, the FISA Court, and the executive branch
agencies together remain vigilant and continue to review the operations
of these agencies.
Let me give a quick summary of the 702 reporting requirements under
current law.
They include a semiannual assessment by the Attorney General and the
DNI. Every 6 months the AG and the DNI are required to assess
compliance with the targeting and minimization procedures and the
acquisition guidelines adopted under Section 702. They are both further
required to submit each assessment to the FISA Court and the
congressional Intelligence and Judiciary Committees.
The inspector general of the Department of Justice and the inspector
general of each element of the intelligence community are also
authorized review compliance with Section 702. The IGs are required to
provide copies of such reviews to the Attorney General, to the Director
of National Intelligence, and the congressional Intelligence and
Judiciary Committees. So we have the AG reviewing, we have the IGs
reviewing, and then we have separate reviews by the agency heads.
The head of each element of the intelligence community must conduct
an annual review which includes the following:
First, an accounting of the number of disseminated intelligence
reports containing a reference to the U.S. person's identity. As a
matter of fact, Members can go into a classified room at the offices of
the Senate Intelligence Committee and review these reports. Any Member
has access to that review.
Second, an accounting of the number of U.S. person identities
subsequently disseminated by that element in response to requests for
identities that were not referred to by name or title in the original
reporting. Members can review that.
Third, the number of targets who were later determined to be located
in the United States and, to the extent possible, whether
communications of such targets were reviewed. Members can go in the
Intelligence Committee offices and review that.
Fourth, a description of any procedures developed by the head of such
element of the intelligence community and approved by the Director of
National Intelligence to assess the extent to which acquisitions under
702 acquire communications of U.S. persons, and the results of any such
assessment.
So you see, the reporting requirements go on and on.
Then there is a semiannual report. Every 6 months, the AG is required
to fully inform the congressional Intelligence and Judiciary Committees
concerning the implementation of Title VII of FISA, and there is a
whole list of things that must be reviewed and recounted. Then there is
a semiannual Attorney General review on FISA. There is also the
provision for documents from the FISA Court relating to significant
construction or interpretation of FISA.
Mr. President, I ask unanimous consent to have printed in the Record
this list.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Summary of Section 702 Reporting Requirements
Background: The surveillance authorities added to the
Foreign Intelligence Surveillance Act (``FISA'') by FISA
Amendments Act (``FAA'') enable the government to conduct
intelligence collection targeting persons located outside the
United States. The FAA provision that receives the most
attention is known as ``Section 702,'' which authorizes the
government to engage in certain forms of intelligence
collection targeting non-U.S. persons located overseas for
foreign intelligence purposes with the assistance of U.S.-
based electronic communication service providers. This
Section 702 collection is approved by the FISA Court on a
programmatic basis, without the need for individualized court
orders. Instead, the Director of National Intelligence (DNI)
and Attorney General (AG) submit annual certifications to the
Court for review and approval, which identify categories of
non-U.S. person targets located overseas.
Reporting Requirements Relating to Section 702: FISA
imposes a series reporting requirements on the AG, DNI, and
agencies within the Intelligence Community (IC) that utilize
Section 702 authorities. These include, with respect to
section 702:
Semiannual AG/DNI Assessments of Section 702. Every six
months, the AG and DNI are required to assess compliance with
the targeting and minimization procedures and the acquisition
guidelines adopted under Section 702. The AG and DNI are
further required to submit each assessment to the FISA Court
and the congressional intelligence and judiciary committees.
Section 702(l)(1) [50 U.S.C. 1881a(l)(1)].
IG Assessments of Section 702. The Inspector General of the
Department of Justice and the Inspector General of each
element of the intelligence community ``authorized to acquire
foreign intelligence information under [Section 702]'' (e.g.,
the NSA IG) are ``authorized'' to review compliance with the
Section 702 targeting and minimization procedures and the
acquisition guidelines. Section 702(l)(2)(A) [50 U.S.C.
1881a(l)(2)(A)] (emphasis added).
In addition, the IGs are required to review ``the number of
disseminated intelligence reports containing a reference to a
United States-person identity and the number of United
States-person identities subsequently disseminated by the
element concerned in response to requests for identities that
were not referred to by name or title in the original
reporting'' and ``the number of targets that were later
determined to be located in the United States and, to the
extent possible, whether communications of such targets were
reviewed.'' Section 702(l)(2)(B), (C) [50 U.S.C.
1881a(l)(2)(B), (C)].
Finally, the IGs are required to provide copies of such
reviews to the AG, DNI, and the congressional intelligence
and judiciary committees. Section 702(l)(2)(D) [50 U.S.C.
1881a(l)(2)(D)].
Annual Reviews by Agency Heads of Section 702. The head of
each element of the intelligence community ``conducting an
acquisition authorized under [Section 702]'' (e.g., the
Director of NSA) are required to conduct annual reviews to
``determine whether there is reason to believe that foreign
intelligence information has been or will be obtained from
the acquisition.'' Among other things, the annual review must
include:
(1) ``an accounting of the number of disseminated
intelligence reports containing a reference to a United
States-person identity;''
(2) ``an accounting of the number of United States-person
identities subsequently disseminated by that element in
response to requests for identities that were not referred to
by name or title in the original reporting;''
(3) ``the number of targets that were later determined to
be located in the United States and, to the extent possible,
whether communications of such targets were reviewed;'' and
(4) ``a description of any procedures developed by the head
of such element of the intelligence community and approved by
the Director of National Intelligence to assess . . . the
extent to which the acquisitions authorized under [Section
702] acquire the communications of United States persons, and
the results of any such assessment.''
The head of each element of the intelligence community that
conducts an annual review is also required to use the review
to ``evaluate the adequacy of the minimization procedures
utilized by such element.''
Finally, the head of each element of the intelligence
community that conducts an annual review is required to
provide a copy of each review to the FISA Court, AG, DNI, and
the congressional intelligence and judiciary committees.
Section 702(l)(3) [50 U.S.C. 1881a(l)(3)].
Semiannual AG Report on Title VII. Every 6 months, the AG
is required to ``fully inform'' the congressional
intelligence and judiciary committees ``concerning the
implementation'' of Title VII. This reporting requirement is
in addition the semiannual assessment performed under Section
702 and encompasses Section 703 and 704 of Title VII, as well
as Section 702. Among other things, each report is required
to include:
(1) certifications submitted in accordance with Section
702;
(2) justification for any exercise of the emergency
authority contained in Section 702;
(3) directives issued under Section 702;
(4) ``a description of the judicial review during the
reporting period . . . including a copy of an order or
pleading in connection with such review that contains a
significant legal interpretation of the provisions of
[Section 702];''
(5) actions taken to challenge or enforce a directive under
Section 702;
(6) compliance reviews of acquisitions authorized under
Section 702;
(7) a description of any incidents of noncompliance with
directives, procedures, or guidelines issued under Section
702; and
(8) the total number of applications made for orders under
Sections 703 and 704, as well as the total number of such
orders granted, modified; and denied; and the number of AG-
[[Page S8393]]
authorized emergency acquisitions under these sections.
Section 707 [50 U.S.C. 1881f].
Semiannual AG Report on FISA. Every 6 months, the AG is
required to submit a report to the congressional intelligence
and judiciary committees concerning the implementation of
FISA. This reporting requirement comes in addition to both
the Section 702 semiannual assessment and the Title VII
semiannual report and encompasses all the provisions of the
Act. In addition to requirements that pertain to Titles I-V
of FISA, the report must include a ``summary of significant
legal interpretations'' involving matters before the FISA
Court and copies of all decisions, orders, or opinions of the
FISA Court that include ``significant construction or
interpretation'' of any provision of FISA, including Section
702. Section 601(a) [50 U.S.C. 1871(a)].
Provision of Documents Relating to Significant Construction
or Interpretation of FISA. Within 45 days of any decision,
order, or opinion issued by the FISA Court that ``includes
significant construction or interpretation of any provision
of [FISA]'' (including Section 702), the AG is required to
submit to the congressional intelligence and judiciary
committees ``a copy of the decision, order, or opinion'' and
any ``pleadings, applications, or memoranda of law associated
with such decision, order, or opinion.'' Section 601(c) [50
U.S.C. 1871(c)].
Mrs. FEINSTEIN. So, Mr. President, it is not a question of this
oversight not being done. I must respectfully disagree with the Senator
from Oregon on that point. There is clearly rigorous oversight, and we
have done hearing after hearing, we have looked at report after report,
and any Member of this body who so wishes can go and review this
material in the offices of the Intelligence Committee.
Now, let me talk about a protection that does exist for privacy, but
will expire if this bill is not passed. That is section 704. Under this
section, the intelligence community is required to get a specific
judicial order before conducting surveillance on a U.S. person located
outside the United States.
Before this provision was enacted in 2008 as the product of Senators
who were concerned--and they were listened to, and this was enacted--
the intelligence community could conduct intelligence collection on
U.S. persons outside the country with only the approval of the Attorney
General but without a requirement of independent judicial review.
Section 704 provides that judicial review by the special Foreign
Intelligence Surveillance Court. This will only be preserved if title
VII of this act is reauthorized. If it isn't, the privacy provision
goes down with it.
Now, let me talk a bit more about the oversight that we have done. If
you listen to some, there has been little oversight, but that is not
the case. We have held numerous hearings with Directors of National
Intelligence Dennis Blair and Jim Clapper; with the head of the NSA,
General Alexander; and with Bob Mueller at the FBI. We have had Eric
Holder appear before the committee to discuss this, and we have heard
from intelligence community professionals involved in carrying out
surveillance operations, the lawyers who review these operations, and,
importantly, the inspectors general who carry out oversight of the
program and have written reports and letters to the Congress with the
results of that report.
The intelligence committee's review of these FAA surveillance
authorities has included the receipt and examination of dozens of
reports concerning the implementation of these authorities over the
past 4 years, which the executive branch is required to provide by law.
We have received and scrutinized all the classified opinions of the
court that interpret the law in a significant way.
Finally, our staff has held countless briefings with officials from
the NSA, the DOJ, the Office of the DNI, and the FISA Court itself,
including the FBI. Collectively, these assessments, reports, and other
information obtained by the Intelligence Committee demonstrate that the
government implements the FAA surveillance authorities in a responsible
manner, with relatively few incidents of noncompliance.
Let me say this. Where such incidents of noncompliance have arisen,
they have been inadvertent. They have not been intentional. They have
been the result of human error or technical defect, and they have been
promptly reported and remedied. That is important. Through 4 years of
oversight, from all these reports, from all the meetings, from all the
hearings, we have not identified a single case in which a government
official engaged in a willful effort to circumvent or violate the law.
Keep in mind the oversight performed by Congress--that is, both
Houses--and the FISA court comes in addition to the extensive internal
oversight of the implementation that is performed by the Department of
Justice, the Director of National Intelligence, and multiple IGs.
There is a view by some that this country no longer needs to fear
attack. I don't share that view, and I have asked the intelligence
committee staff to compile arrests that have been made in the last 4
years in America on terrorist plots that have been stopped. There are
100 arrests that have been made between 2009 and 2012. There have been
16 individuals arrested just this year alone. Let me quickly review
some of these plots. Some of these may arrests come about as a result
of this program. Again, if Members want to see the specific cases where
FISA Amendments Act authorities were used, they can go and look at the
classified background of these cases.
First, in November, 1 month ago, two arrests for conspiracy to
provide material support to terrorists and use a weapon of mass
destruction. That was Raees Alam Qazi and Sheheryar Alam Qazi. They
were arrested by the FBI in Fort Lauderdale, FL. The next case is
another conspiracy to provide material support. Arrested were Ralph
Deleon, Miguel Alejandro Santana Vidriales and Arifeen David Gojali.
These three men were planning to travel to Afghanistan to attend
terrorist training and commit violent jihad; third, was a plot to bomb
the New York Federal Reserve Bank; fourth, a plot to bomb a downtown
Chicago bar; fifth, a conspiracy to provide material support to the
Islamic Jihad Union; sixth, a plot to carry out a suicide bomb attack
against the U.S. Capitol in February of 2012; seventh, a plot to bomb
locations in Tampa, FL; eighth, a plot to bomb New York City targets
and troops returning from combat overseas; ninth, a plot to assassinate
the Saudi Ambassador to the United States; and it goes on and on and
on.
So I believe the FISA Amendments Act is important and these cases
show the program has worked. As the years go on, I believe good
intelligence is the most important way to prevent these attacks.
Information gained through programs such as this one--and through
other sources as well--is able to be used to prevent future attacks.
So, in the past 4 years, there have been 100 arrests to prevent
something from happening in the United States, some of these plots have
been thwarted because of this program. I think it is a vital program.
We are doing our level best to conduct good oversight and keep abreast
of the details of the program and to see that these reports come in. I
have tried to satisfy Senator Wyden but apparently have been unable to
do so.
I am hopeful the Senate Intelligence Committee's 13-to-2 vote to
reauthorize this important legislation will be considered by all
Members.
I ask unanimous consent to have printed in the Record the Statement
of Administrative Policy on the House bill.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Statement of Administration Policy
H.R. 5949--FISA Amendments Act Reauthorization Act of 2012
(Rep. Smith, R-TX, and 5 cosponsors, Sept. 10, 2012)
The Administration strongly supports H.R. 5949. The bill
would reauthorize Title VII of the Foreign Intelligence
Surveillance Act (FISA), which expires at the end of this
year. Title VII of FISA allows the Intelligence Community to
collect vital foreign intelligence information about
international terrorists and other important targets
overseas, while providing protection for the civil liberties
and privacy of Americans. Intelligence collection under Title
VII has produced and continues to produce significant
information that is vital to defend the Nation against
international terrorism and other threats. The Administration
looks forward to working with the Congress to ensure the
continued availability of this critical intelligence
capability.
Mrs. FEINSTEIN. It states that the administration strongly supports
H.R. 5949, and it goes on to say what the bill
[[Page S8394]]
would do. It says it is vital and it produced and continues to produce
significant information that is vital to defend the Nation against
international terrorism and other threats.
I am very hopeful this bill will pass without amendment and thereupon
can go directly to the President for signature.
I yield the floor.
exhibit 1
Inspector General of the
Intelligence Community,
Washington, DC, June 15, 2012.
Hon. Ron Wyden,
Senate Select Committee on Intelligence, U.S. Senate,
Washington, DC.
Hon. Mark Udall,
Senate Select Committee on Intelligence, U.S. Senate,
Washington, DC.
Dear Senator Wyden and Senator Udall: Thank you for your 4
May 2012 letter requesting that my office and the National
Security Agency (NSA) Inspector General (IG) determine the
feasibility of estimating ``how many people inside the United
States have had their communications collected or reviewed
under the authorities granted by section 702'' of the FISA
Amendment Act (FAA). On 21 May 2012, I informed you that the
NSA Inspector General, George Ellard, would be taking the
lead on the requested feasibility assessment, as his office
could provide an expedited response to this important
inquiry.
The NSA IG provided a classified response on 6 June 2012. I
defer to his conclusion that obtaining such an estimate was
beyond the capacity of his office and dedicating sufficient
additional resources would likely impede the NSA's mission.
He further stated that his office and NSA leadership agreed
that an IG review of the sort suggested would itself violate
the privacy of U.S. persons.
As I stated in my confirmation hearing and as we have
specifically discussed, I firmly believe that oversight of
intelligence collection is a proper function of an Inspector
General. I will continue to work with you and the Committee
to identify ways that we can enhance our ability to conduct
effective oversight. If you have any questions concerning
this response, please contact me.
Sincerely,
I. Charles McCullough, III,
Inspector General of the Intelligence Community.
____
Director of National Intelligence,
Washington, DC.
Hon. Ron Wyden,
U.S. Senate.
Hon. Mike Lee
U.S. Senate.
Hon. Rand Paul,
U.S. Senate.
Hon. Mark Begich,
U.S. Senate.
Hon. Jon Tester,
U.S. Senate.
Hon. Tom Udall,
U.S. Senate.
Hon. Maria Cantwell,
U.S. Senate.
Hon. Mark Udall,
U.S. Senate.
Hon. Jeff Merkley,
U.S. Senate.
Hon. Chris Coons,
U.S. Senate.
Hon. Jeff Bingaman,
U.S. Senate.
Hon. Bernard Sanders,
U.S. Senate.
Hon. Dick Durbin,
U.S. Senate.
Dear Senators: (U) Thank you for your July 26, 2012 letter
on the FISA Amendments Act (FAA). As you noted,
reauthorization of FAA is an extremely high priority for the
Administration. The FAA authorities have proved to be an
invaluable asset in our effort to detect and prevent threats
to our nation and our allies.
The members of the Intelligence Community and I appreciate
the need for Congress to be fully informed about this statute
as it considers reauthorization. We have repeatedly reported
to the Intelligence and Judiciary committees of both the
House and Senate how we have implemented the statute, the
operational value it has afforded, and the extensive measures
we take to ensure that the Government's use of these
authorities comports with the Constitution and the laws of
the United States. Our record of transparency with the
Congress includes many formal briefings and hearings,
numerous written notifications and reports, and countless
hours that our legal, operational, and compliance experts
have spent in detailed discussions, briefings, and
demonstrations with committee staff and counsel. In addition,
we have provided classified and unclassified white papers,
available to any Member of Congress, detailing how the law is
implemented, the robust oversight involved, and the nature
and value of the resulting collection.
(U) This extensive history of interaction with Congress has
included discussions, within the past several months, of the
issues raised in your letter of July 26. We have met at
length with committee staff and counsel to discuss the legal
and operational parameters associated with use of FAA 702.
With the benefit of this information, the committees have
reported FAA reauthorization legislation. We urge that it be
brought to the floor of the Senate and House, and enacted
without amendment as proposed by the Administration at the
earliest possible date.
This degree of transparency with Congress has been possible
because these hearings, briefings, reports, and discussion
have generally been classified. The issues you have raised
cannot be accurately and thoroughly addressed in an
unclassified setting without revealing intelligence sources
and methods, which would defeat the very purpose for which
the laws were enacted. It remains vitally important to avoid
public disclosure of sources and methods with respect to
section 702 in order to protect the efficacy of this
important provision for collecting foreign intelligence
information.
(U) The ability to discuss these issues in a classified
setting allows us to be completely transparent with Congress
on behalf of the American people. We are committed to
continuing that transparency. Although a meaningful and
accurate unclassified response to the important questions you
have asked is not possible. I am enclosing a classified
response that addresses your questions in detail.
(U) That said, there is a point in your letter I would like
to address directly. I strongly take exception to the
suggestion that there is a ``loophole'' in the current law
concerning access to communications collected under section
702 of the FAA. While our collection methods are classified,
the basic standards for that collection are a matter of
public law:
Section 702 only permits targeting of non-U.S. persons
reasonably believed to be located outside of the United
States. It does not permit targeting of U.S. persons anywhere
in the world, or of any person inside the United States.
Section 702 prohibits so-called ``reverse targeting''--
targeting a person located outside the United States as a
pretext when the real goal is to target a person inside the
United States.
Section 702 prohibits the intentional acquisition of any
communication when all communicants are known at the time of
acquisition to be within the United States.
(U) In enacting these standards for collection, Congress
understood that some communications of U.S. persons would be
incidentally acquired, and the statute therefore specifies
minimization procedures that restrict that acquisition,
retention, and dissemination of any information about U.S.
persons. The Foreign Intelligence Surveillance Court is
required by statute to ensure that those procedures are both
reasonably designed to ensure compliance with the above
limitations and consistent with the Fourth Amendment. In
addition, components of the Executive Branch, including both
my office and the Department of Justice, regularly assess
compliance with the targeting and minimization procedures.
Finally, the Intelligence Committees have been fully briefed
on both the law and how the government collects and uses
information under section 702. In short, there is no loophole
in the law.
(U) As the legislation comes up for floor consideration, we
would welcome the opportunity to meet with any Senator or
appropriately cleared staff member to address these issues in
a classified setting. I have asked Kathleen Turner, Director
of my Office of Legislative Affairs, to contact your offices
to try to schedule a briefing.
(U) I appreciate your taking the time to share your views
with me, and I look forward to working with you to ensure
that Congress has a full understanding of these and any other
concerns you may have as the Senate considers legislation to
reauthorize the FAA this fall.
Sincerely,
James R. Clapper.
Enclosure.
UNCLASSIFIED upon removal of Enclosure.
[[Page S8395]]
____
Office of the Director of National Intelligence, and
United States Department of Justice
Washington, DC, Feb. 8, 2012.
Hon. John Boehner,
Speaker, United States House of Representatives, Washington,
DC
Hon. Harry Reid,
Majority Leader, U.S. Senate, Washington, DC.
Hon. Nancy Pelosim
Democratic Leader, United States House of Representatives,
Washington, DC.
Hon. Mitch McConnell,
Republican Leader, U.S. Senate, Washington, DC.
Dear Speaker Boehner and Leaders Reid, Pelosi, and
McConnell: we are writing to urge that the Congress
reauthorize Title VII of the Foreign Intelligence
Surveillance Act (FISA) enacted by the FISA Amendments Act of
2008 (FAA), which is set to expire at the end of this year.
Title VII of FISA allows the Intelligence Community to
collect vital information about international terrorists and
other important targets overseas. Reauthorizing this
authority is the top legislative priority of the Intelligence
Community.
One provision, section 702, authorizes surveillance
directed at non-U.S. persons located overseas who are of
foreign intelligence importance. At the same time, it
provides a comprehensive regime of oversight by all three
branches of Government to protect the privacy and civil
liberties of U.S. persons. Under section 702, the Attorney
General and the Director of National Intelligence may
authorize annually, with the approval of the Foreign
Intelligence Surveillance Court (FISC), intelligence
collection targeting categories of non-U.S. persons abroad,
without the need for a court order for each individual
target. Within this framework, no acquisition may
intentionally target a U.S. person, here or abroad, or any
other person known to be in the United States. The law
requires special procedures designed to ensure that all such
acquisitions target only non-U.S. persons outside the United
States, and to protect the privacy of U.S. persons whose
nonpublic information may be incidentally acquired. The
Department of Justice and the Office of the Director of
National Intelligence conduct extensive oversight reviews of
section 702 activities at least once every sixty days, and
Title VII requires us to report to the Congress on
implementation and compliance twice a year.
A separate provision of Title VII requires that
surveillance directed at U.S. persons overseas be approved by
the FISC in each individual case, based on a finding that
there is probable cause to believe that the target is a
foreign power or an agent, officer, or employee of a foreign
power. Before the enactment of the FAA, the Attorney General
could authorize such collection without court approval. This
provision thus increases the protection given to U.S.
persons.
The attached background paper provides additional
unclassified information on the structure, operation and
oversight of Title VII of FISA.
Intelligence collection under Title VII has produced and
continues to produce significant intelligence that is vital
to protect the nation against international terrorism and
other threats. We welcome the opportunity to provide
additional information to members concerning these
authorities in a classified setting. We are always
considering whether there are changes that could be made to
improve the law in a manner consistent with the privacy and
civil liberties interests of Americans. Our first priority,
however, is reauthorization of these authorities in their
current form. We look forward to working with you to ensure
the speedy enactment of legislation reauthorizing Title VII,
without amendment, to avoid any interruption in our use of
these authorities to protect the American people.
Sincerely,
James R. Clapper,
Director of National Intelligence.
Eric H. Holder, Jr.,
Attorney General.
____
Background Paper on Title VII of FISA Prepared by the Department of
Justice and the Office of Director of National Intelligence (ODNI)
This paper describes the provisions of Title VII of the
Foreign Intelligence Surveillance Act (FISA) that were added
by the FISA Amendments Act of 2008 (FAA). Title VII has
proven to be an extremely valuable authority in protecting
our nation from terrorism and other national security
threats. Title VII is set to expire at the end of this year,
and its reauthorization is the top legislative priority of
the Intelligence Community.
The FAA added a new section 702 to FISA, permitting the
Foreign Intelligence Surveillance Court (FISC) to approve
surveillance of terrorist suspects and other foreign
intelligence targets who are non-U.S. persons outside the
United States, without the need for individualized court
orders. Section 702 includes a series of protections and
oversight measures to safeguard the privacy and civil
liberties interests of U.S. persons. FISA continues to
include its original electronic surveillance provisions,
meaning that, in most cases, an individualized court order,
based on probable cause that the target is a foreign power or
an agent of a foreign power, is still required to conduct
electronic surveillance of targets inside the United States.
Indeed, other provisions of Title VII extend these
protections to U.S. persons overseas. The extensive oversight
measures used to implement these authorities demonstrate that
the Government has used this capability in the manner
contemplated by Congress, taking great care to protect
privacy and civil liberties interests.
This paper begins by describing how section 702 works, its
importance to the Intelligence Community, and its extensive
oversight provisions. Next, it turns briefly to the other
changes made to FISA by the FAA, including section 704, which
requires an order from the FISC before the Government may
engage in surveillance targeted at U.S. persons overseas.
Third, this paper describes the reporting to Congress that
the Executive Branch has done under Title VII of FISA.
Finally, this paper explains why the Administration believes
it is essential that Congress reauthorize Title VII.
1. Section 702 provides valuable foreign intelligence information about
terrorists and other targets overseas, while protecting the privacy and
civil liberties of Americans
Section 702 permits the FISC to approve surveillance of
terrorist suspects and other targets who are non-U.S. persons
outside the United States, without the need for
individualized court orders. The FISC may approve
surveillance of these kinds of targets when the Government
needs the assistance of an electronic communications service
provider.
Before the enactment of the FAA and its predecessor
legislation, in order to conduct the kind of surveillance
authorized by section 702, FISA was interpreted to require
that the Government show on an individualized basis, with
respect to all non-U.S. person targets located overseas, that
there was probable cause to believe that the target was a
foreign power or an agent of a foreign power, and to obtain
an order from the FISC approving the surveillance on this
basis. In effect, the Intelligence Community treated non-U.S.
persons located overseas like persons in the United States,
even though foreigners outside the United States generally
are not entitled to the protections of the Fourth Amendment.
Although FISA's original procedures are proper for electronic
surveillance of persons inside this country, such a process
for surveillance of terrorist suspects overseas can slow, or
even prevent, the Government's acquisition of vital
information, without enhancing the privacy interests of
Americans. Since its enactment in 2008, section 702 has
significantly increased the Government's ability to act
quickly.
Under section 702, instead of issuing individual court
orders, the FISC approves annual certifications submitted by
the Attorney General and the DNI that identify categories of
foreign intelligence targets. The provision contains a number
of important protections for U.S. persons and others in the
United States. First, the Attorney General and the DNI must
certify that a significant purpose of the acquisition is to
obtain foreign intelligence information. Second, an
acquisition may not intentionally target a U.S. person.
Third, it may not intentionally target any person known at
the time of acquisition to be in the United States. Fourth,
it may not target someone outside the United States for the
purpose of targeting a particular, known person in this
country. Fifth, section 702 prohibits the intentional
acquisition of ``any communication as to which the sender and
all intended recipients are known at the time of the
acquisition'' to be in the United States. Finally, it
requires that any acquisition be consistent with the Fourth
Amendment.
To implement these provisions, section 702 requires
targeting procedures, minimization procedures, and
acquisition guidelines. The targeting procedures are designed
to ensure that an acquisition only targets persons outside
the United States, and that it complies with the restriction
on acquiring wholly domestic communications. The minimization
procedures protect the identities of U.S. persons, and any
nonpublic information concerning them that may be
incidentally acquired. The acquisition guidelines seek to
ensure compliance with all of the limitations of section 702
described above, and to ensure that the Government files an
application with the FISC when required by FISA.
The FISC reviews the targeting and minimization procedures
for compliance with the requirements of both the statute and
the Fourth Amendment. Although the FISC does not approve the
acquisition guidelines, it receives them, as do the
appropriate congressional committees. By approving the
certifications submitted by the Attorney General and the DNI
as well as by approving the targeting and minimization
procedures, the FISC plays a major role in ensuring that
acquisitions under section 702 are conducted in a lawful and
appropriate manner.
Section 702 is vital in keeping the nation safe. It
provides information about the plans and identities of
terrorists, allowing us to glimpse inside terrorist
organizations and obtain information about how those groups
function and receive support. In addition, it lets us collect
information about the intentions and capabilities of weapons
proliferators and other foreign adversaries who threaten the
United States. Failure to reauthorize section 702 would
result in a loss of significant intelligence and impede the
ability of the Intelligence Community to respond quickly to
new threats and intelligence opportunities. Although this
unclassified paper cannot discuss more specifically the
nature of the information acquired under
[[Page S8396]]
section 702 or its significance, the Intelligence Community
is prepared to provide Members of Congress with detailed
classified briefings as appropriate.
The Executive Branch is committed to ensuring that its use
of section 702 is consistent with the law, the FISC's orders,
and the privacy and civil liberties interests of U.S.
persons. The Intelligence Community, the Department of
Justice, and the FISC all oversee the use of section 702. In
addition, congressional committees conduct essential
oversight, which is discussed in section 3 below.
Oversight of activities conducted under section 702 begins
with components in the intelligence agencies themselves,
including their Inspectors General. The targeting procedures,
described above, seek to ensure that an acquisition targets
only persons outside the United States and that it complies
with section 702's restriction on acquiring wholly domestic
communications. For example, the targeting procedures for the
National Security Agency (NSA) require training of agency
analysts, and audits of the databases they use. NSA's Signals
Intelligence Directorate also conducts other oversight
activities, including spot checks of targeting decisions.
With the strong support of Congress, NSA has established a
compliance office, which is responsible for developing,
implementing, and monitoring a comprehensive mission
compliance program.
Agencies using section 702 authority must report promptly
to the Department of Justice and ODNI incidents of
noncompliance with the targeting or minimization procedures
or the acquisition guidelines. Attorneys in the National
Security Division (NSD) of the Department routinely review
the agencies' targeting decisions. At least once every 60
days, NSD and ODNI conduct oversight of the agencies'
activities under section 702. These reviews are normally
conducted on-site by a joint team from NSD and ODNI. The team
evaluates and, where appropriate, investigates each potential
incident of noncompliance, and conducts a detailed review of
agencies' targeting and minimization decisions.
Using the reviews by Department of Justice and ODNI
personnel, the Attorney General and the DNI conduct a semi-
annual assessment, as required by section 702, of compliance
with the targeting and minimization procedures and the
acquisition guidelines. The assessments have found that
agencies have ``continued to implement the procedures and
follow the guidelines in a manner that reflects a focused
and concerted effort by agency personnel to comply with
the requirements of Section 702.'' The reviews have not
found ``any intentional attempt to circumvent or violate''
legal requirements. Rather, agency personnel ``are
appropriately focused on directing their efforts at non-
United States persons reasonably believed to be located
outside the United States.''
Section 702 thus enables the Government to collect
information effectively and efficiently about foreign targets
overseas and in a manner that protects the privacy and civil
liberties of Americans. Through rigorous oversight, the
Government is able to evaluate whether changes are needed to
the procedures or guidelines, and what other steps may be
appropriate to safeguard the privacy of personal information.
In addition, the Department of Justice provides the joint
assessments and other reports to the FISC. The FISC has been
actively involved in the review of section 702 collection.
Together, all of these mechanisms ensure thorough and
continuous oversight of section 702 activities.
2. Other important provisions of Title VII of FISA also should be
reauthorized
In contrast to section 702, which focuses on foreign
targets, section 704 provides heightened protection for
collection activities conducted overseas and directed against
U.S. persons located outside the United States. Section 704
requires an order from the FISC in circumstances in which the
target has ``a reasonable expectation of privacy and a
warrant would be required if the acquisition were conducted
inside the United States for law enforcement purposes.'' It
also requires a showing of probable cause that the targeted
U.S. person is ``a foreign power, an agent of a foreign
power, or an officer or employee of a foreign power.''
Previously, these activities were outside the scope of FISA
and governed exclusively by section 2.5 of Executive Order
12333. By requiring the approval of the FISC, section 704
enhanced the civil liberties of U.S. persons.
The FAA also added several other provisions to FISA.
Section 703 complements section 704 and permits the FISC to
authorize an application targeting a U.S. person outside the
United States to acquire foreign intelligence information, if
the acquisition constitutes electronic surveillance or the
acquisition of stored electronic communications or data, and
is conducted in the United States. Because the target is a
U.S. person, section 703 requires an individualized court
order and a showing of probable cause that the target is a
foreign power, an agent of a foreign power, or an officer or
employee of a foreign power. Other sections of Title VII
allow the Government to obtain various authorities
simultaneously, govern the use of information in litigation,
and provide for congressional oversight. Section 708
clarifies that nothing in Title VII is intended to limit the
Government's ability to obtain authorizations under other
parts of FISA.
3. Congress has been kept fully informed, and conducts vigorous
oversight, of Title VII's implementation
FISA imposes substantial reporting requirements on the
Government to ensure effective congressional oversight of
these authorities. Twice a year, the Attorney General must
``fully inform, in a manner consistent with national
security,'' the Intelligence and Judiciary Committees about
the implementation of Title VII. With respect to section 702,
this semi-annual report must include copies of certifications
and significant FISC pleadings and orders. It also must
describe any compliance incidents, any use of emergency
authorities, and the FISC's review of the Government's
pleadings. With respect to sections 703 and 704, the report
must include the number of applications made, and the number
granted, modified, or denied by the FISC.
Section 702 requires the Government to provide to the
Intelligence and Judiciary Committees its assessment of
compliance with the targeting and minimization procedures and
the acquisition guidelines. In addition, Title VI of FISA
requires a summary of significant legal interpretations of
FISA in matters before the FISC or the Foreign Intelligence
Surveillance Court of Review. The requirement extends to
interpretations presented in applications or pleadings filed
with either court by the Department of Justice. In addition
to the summary, the Department must provide copies of
judicial decisions that include significant interpretations
of FISA within 45 days.
The Government has complied with the substantial reporting
requirements imposed by FISA to ensure effective
congressional oversight of these authorities. The Government
has informed the Intelligence and Judiciary Committees of
acquisitions authorized under section 702; reported, in
detail, on the results of the reviews and on compliance
incidents and remedial efforts; made all written reports on
these reviews available to the Committees; and provided
summaries of significant interpretations of FISA, as well as
copies of relevant judicial opinions and pleadings.
4. It is essential that Title VII of FISA be reauthorized well in
advance of its expiration
The Administration strongly supports the reauthorization of
Title VII of FISA. It was enacted after many months of
bipartisan effort and extensive debate. Since its enactment,
Executive Branch officials have provided extensive
information to Congress on the Government's use of Title VII,
including reports, testimony, and numerous briefings for
Members and their staffs. This extensive record demonstrates
the proven value of these authorities, and the commitment of
the Government to their lawful and responsible use.
Reauthorization will ensure continued certainty with the
rules used by Government employees and our private partners.
The Intelligence Community has invested significant human and
financial resources to enable its personnel and technological
systems to acquire and review vital data quickly and
lawfully. Our adversaries, of course, seek to hide the most
important information from us. It is at best inefficient and
at worst unworkable for agencies to develop new technologies
and procedures and train employees, only to have a statutory
framework subject to wholesale revision. This is particularly
true at a time of limited resources. It is essential that
these authorities remain in place without interruption--and
without the threat of interruption--so that those who have
been entrusted with their use can continue to protect our
nation from its enemies.
Mr. GRASSLEY. Mr. President, the reauthorization of the Foreign
Intelligence Surveillance Act Amendments Act, also known as the FISA
Amendments Act, is a crucial authority for the U.S. Intelligence
Community. Unless we act to pass this legislation, the law will expire
in just a few days from now. It must be reauthorized immediately for a
5-year period.
I am familiar with the FISA Amendments Act, FAA, through my role as
ranking member of the Judiciary Committee, which along with the Select
Committee on Intelligence, has jurisdiction over this legislation and
oversight of the intelligence operations conducted by the Department of
Justice and Federal Bureau of Investigation. During the last year, my
staff and I have engaged in extensive consultation with the
intelligence community and the Department of Justice to understand how
the FAA has been used. The committee held a closed hearing with witness
testimony and questions from Senators as well.
We debated this legislation in committee where I opposed the version
produced by the Judiciary Committee which is now the basis of the Leahy
amendment. I opposed it because I have learned a great deal both about
the value of the intelligence collected under the FAA and about the
lengths that the intelligence community goes to protect the rights of
U.S. citizens when collecting that intelligence.
[[Page S8397]]
Given the congressional oversight of this legislation, coupled with the
built-in protections and oversight from the executive branch, the value
of the intelligence gathered by this important legislation warrants
reauthorization without the changes made by the Leahy amendment.
The most important portion of the FAA is Section 702. It authorizes,
with approval of the Foreign Intelligence Surveillance Court, FISC, an
11-member panel of Article III judges appointed by the Supreme Court,
electronic surveillance of non-U.S. persons located overseas, but
without the need for individualized orders for every target of the
surveillance, as is required for surveillance of anyone inside the
United States. The law specifically prohibits targeting U.S. persons,
acquiring wholly domestic communications, or targeting someone outside
the U.S. with the intent to collect information on a target inside the
U.S. known as ``reverse-targeting''.
It is possible that the communications of some U.S. citizens may be
captured during the conduct of authorized surveillance. But that is
only incidentally. The only way that a U.S. person's communication
would be picked up would be if that person were in communication with a
non-U.S. person overseas who had been targeted under the FAA.
Some people think that a U.S. person has a constitutional right not
to have his communications with a foreign target eavesdropped by the
U.S. government without a warrant. But that's not how the fourth
amendment works. It protects the rights of the person who is being
targeted, not anyone in contact with him. For example, if the
government legally taps the phone of a mafia godfather in the United
States, it can listen to his conversation with anyone who calls him. It
doesn't need a court-issued warrant for the person calling, only for
the godfather himself. He is the one who has a reasonable expectation
of privacy in his telephone.
In the same way, when the government legally intercepts the
communications of a terrorist living overseas, it can listen to his
conversation with anyone who contacts him, even if the other party is
in the United States. What matters is whether the government has the
legal authority to intercept the communications of the terrorist in the
first place. That's what the FAA provides. It is important to point out
that no warrant is required because the target is not a U.S. citizen
and is located overseas. So, the fourth amendment doesn't apply to him.
Instead, under Section 702, the FISC approves annual certifications
from the attorney general and director of National Intelligence about
collection of information on categories of foreign intelligence
targets, what procedures the intelligence community will use to
accomplish this surveillance, how they will target subjects for
surveillance, and how the IC will use the information. The government
must also demonstrate to the court that it has special procedures to
weed out intentional collection of communications of anyone located
inside the United States and to minimize the use of any incidentally
collected information.
In addition, there is significant oversight of the program to protect
U.S. citizens' rights. The law requires that the Attorney General and
director of National Intelligence conduct semi-annual assessments of
the surveillance activities. Furthermore, it authorizes the inspector
general of the Department of Justice to review the program at any time.
Both houses of Congress are provided the semi-annual reports and IG
audits, as well as significant decisions of the FISC. These are on file
with the Senate security office and any Senator and appropriately
cleared staff can review them.
This process works. Our oversight of the implementation of the
statute has found no evidence that it has been intentionally misused in
order to eavesdrop on Americans. Senator Feinstein, chair of the Senate
Select Committee on Intelligence, and even Senator Leahy, chairman of
the Judiciary Committee, have stated that no such misconduct has been
discovered.
For these reasons, we should reauthorize the statute without any
changes, as the House has done. The only adjustment to the existing
statute in the House bill is replacing the expiration date of December
31, 2012 with December 31, 2017, a 5-year period. That is also what the
administration supports and what the intelligence committee passed this
summer. A 5-year period would allow the intelligence community to
continue utilizing these valuable tools against potential terrorists or
other intelligence targets without interruption or delay. It will
provide the intelligence community with much needed certainty and
stability in a program that works to save American lives.
The combination of the statutory limitations on collection, targeting
and minimization procedures, and acquisition guidelines, court review
of those procedures and guidelines, and compliance oversight by the
administration and Congress, ensure that the rights of U.S. persons are
sufficiently protected when their communications are incidentally
collected in the course of targeting non-U.S. persons located abroad.
I urge my colleagues to support the House passed version of the FAA
reauthorization so we can ensure that there is no interruption in one
of our most vital national security tools.
The ACTING PRESIDENT pro tempore. The Senator from Oregon.
Amendment No. 3435
Mr. MERKLEY. Mr. President, I call up my amendment which is at the
desk.
The ACTING PRESIDENT pro tempore. The clerk will report.
The bill clerk read as follows:
The Senator from Oregon [Mr. Merkley] proposes an amendment
numbered 3435.
Mr. MERKLEY. Mr. President, I ask unanimous consent that further
reading be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The amendment is as follows:
(Purpose: To require the Attorney General to disclose each decision,
order, or opinion of a Foreign Intelligence Surveillance Court that
includes significant legal interpretation of section 501 or 702 of the
Foreign Intelligence Surveillance Act of 1978 unless such disclosure is
not in the national security interest of the United States)
At the appropriate place, insert the following:
SEC. _. DISCLOSURE OF DECISIONS, ORDERS, AND OPINIONS OF THE
FOREIGN INTELLIGENCE SURVEILLANCE COURT.
(a) Findings.--Congress finds the following:
(1) Secret law is inconsistent with democratic governance.
In order for the rule of law to prevail, the requirements of
the law must be publicly discoverable.
(2) The United States Court of Appeals for the Seventh
Circuit stated in 1998 that the ``idea of secret laws is
repugnant''.
(3) The open publication of laws and directives is a
defining characteristic of government of the United States.
The first Congress of the United States mandated that every
``law, order, resolution, and vote [shall] be published in at
least three of the public newspapers printed within the
United States''.
(4) The practice of withholding decisions of the Foreign
Intelligence Surveillance Court is at odds with the United
States tradition of open publication of law.
(5) The Foreign Intelligence Surveillance Court
acknowledges that such Court has issued legally significant
interpretations of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) that are not accessible to
the public.
(6) The exercise of surveillance authorities under the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.), as interpreted by secret court opinions,
potentially implicates the communications of United States
persons who are necessarily unaware of such surveillance.
(7) Section 501 of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1861), as amended by section 215 of
the USA PATRIOT Act (Public Law 107-56; 115 Stat. 287),
authorizes the Federal Bureau of Investigation to require the
production of ``any tangible things'' and the extent of such
authority, as interpreted by secret court opinions, has been
concealed from the knowledge and awareness of the people of
the United States.
(8) In 2010, the Department of Justice and the Office of
the Director of National Intelligence established a process
to review and declassify opinions of the Foreign Intelligence
Surveillance Court, but more than two years later no
declassifications have been made.
(b) Sense of Congress.--It is the sense of Congress that
each decision, order, or opinion issued by the Foreign
Intelligence Surveillance Court or the Foreign Intelligence
Surveillance Court of Review that includes significant
construction or interpretation of section 501 or section 702
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1861 and 1881a) should be declassified in a manner
consistent with the protection of national security,
intelligence sources and methods, and other properly
classified and sensitive information.
[[Page S8398]]
(c) Requirement for Disclosures.--
(1) Section 501.--
(A) In general.--Section 501 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1861) is amended by
adding at the end the following:
``(i) Disclosure of Decisions.--
``(1) Decision defined.--In this subsection, the term
`decision' means any decision, order, or opinion issued by
the Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review that includes
significant construction or interpretation of this section.
``(2) Requirement for disclosure.--Subject to paragraphs
(3) and (4), the Attorney General shall declassify and make
available to the public--
``(A) each decision that is required to be submitted to
committees of Congress under section 601(c), not later than
45 days after such opinion is issued; and
``(B) each decision issued prior to the date of the
enactment of the ____ Act that was required to be submitted
to committees of Congress under section 601(c), not later
than 180 days after such date of enactment.
``(3) Unclassified summaries.--Notwithstanding paragraph
(2) and subject to paragraph (4), if the Attorney General
makes a determination that a decision may not be declassified
and made available in a manner that protects the national
security of the United States, including methods or sources
related to national security, the Attorney General shall
release an unclassified summary of such decision.
``(4) Unclassified report.--Notwithstanding paragraphs (2)
and (3), if the Attorney General makes a determination that
any decision may not be declassified under paragraph (2) and
an unclassified summary of such decision may not be made
available under paragraph (3), the Attorney General shall
make available to the public an unclassified report on the
status of the internal deliberations and process regarding
the declassification by personnel of Executive branch of such
decisions. Such report shall include--
``(A) an estimate of the number of decisions that will be
declassified at the end of such deliberations; and
``(B) an estimate of the number of decisions that, through
a determination by the Attorney General, shall remain
classified to protect the national security of the United
States.''.
(2) Section 702.--Section 702(l) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(l)) is
amended by adding at the end the following:
``(4) Disclosure of decisions.--
``(A) Decision defined.--In this paragraph, the term
`decision' means any decision, order, or opinion issued by
the Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review that includes
significant construction or interpretation of this section.
``(B) Requirement for disclosure.--Subject to subparagraphs
(C) and (D), the Attorney General shall declassify and make
available to the public--
``(i) each decision that is required to be submitted to
committees of Congress under section 601(c), not later than
45 days after such opinion is issued; and
``(ii) each decision issued prior to the date of the
enactment of the ____ Act that was required to be submitted
to committees of Congress under section 601(c), not later
than 180 days after such date of enactment.
``(C) Unclassified summaries.--Notwithstanding subparagraph
(B) and subject to subparagraph (D), if the Attorney General
makes a determination that a decision may not be declassified
and made available in a manner that protects the national
security of the United States, including methods or sources
related to national security, the Attorney General shall
release an unclassified summary of such decision.
``(D) Unclassified report.--Notwithstanding subparagraphs
(B) and (C), if the Attorney General makes a determination
that any decision may not be declassified under subparagraph
(B) and an unclassified summary of such decision may not be
made available under subparagraph (C), the Attorney General
shall make available to the public an unclassified report on
the status of the internal deliberations and process
regarding the declassification by personnel of Executive
branch of such decisions. Such report shall include--
``(i) an estimate of the number of decisions that will be
declassified at the end of such deliberations; and
``(ii) an estimate of the number of decisions that, through
a determination by the Attorney General, shall remain
classified to protect the national security of the United
States.''.
Mr. MERKLEY. Mr. President, I rise this morning to talk about the
Foreign Intelligence Surveillance Act and the concerns I and many of my
colleagues have.
Earlier this morning, Senator Wyden, the senior Senator from Oregon,
was discussing at length the importance of the fourth amendment, the
importance of Americans knowing the boundaries and the rules under
which our government collects intelligence and to know their rights to
privacy are protected.
Under this Foreign Intelligence Surveillance Act, there are a variety
of ways in which that assurance is compromised, and Senator Wyden did a
very good job of laying those out. I wish to emphasize that same
message; that our country was founded on the principles of privacy and
liberty, of protection from an overreaching central government.
During the founding, we set out and said we are going to be a new
kind of nation; one that will not permit an overbearing, intrusive
government spying on citizens or meddling in their private affairs.
This belief was enshrined in our fourth amendment:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
I think that is an extraordinarily complete description saying that
the government is bound--bound--by having to demonstrate before a court
probable cause a case that is put forward and backed up by oath or
affirmation, a case that is put forward with great detail about the
places to be searched and the persons or things to be seized.
So the concept is laid out very clearly about what constitutes
unreasonable searches and seizures. It is certainly not that the
government can't collect information, just they have to show probable
cause of a crime in order to create that boundary that says the
information we have in our daily lives. I don't know how much broader
it can be than houses, papers, and effects. It pretty much covers the
entire parameter.
One of the problems we have is that sometimes lawyers start looking
for loopholes, and we can address those loopholes if they are discussed
in a public setting, if we can get our hands around them. But if they
are loopholes created in secrecy, then indeed it is very hard to have a
debate on the floor of the Senate about whether those loopholes or
interpretations are right or whether we should change the law in order
to address them.
Of course, our laws have had to be updated and changed over time to
adapt to new technology and changing threats, and one of those
developments was the creation of the Foreign Intelligence Surveillance
Act in the 1970s.
In 1972, the Supreme Court held the fourth amendment does not permit
warrantless surveillance for intelligence investigations within our
country. One may wonder how this even took a Supreme Court decision
since the fourth amendment is so absolutely clear on this point.
In 1978, Congress enacted FISA--Foreign Intelligence Surveillance
Act--to regulate government surveillance within our country that is
conducted for foreign intelligence purposes. Under FISA, the government
had to obtain an order from a special court called the FISA Court in
order to spy on Americans. This is certainly an appropriate boundary to
implement. The order required the government to obtain a warrant and
show probable cause. These are the same basic, commonsense protections
we have had in place for other types of searches. This development
required individualized and particular orders from the FISA Court to
collect communications.
But now let's fast forward to 2001. President Bush decided in secret
to authorize the National Security Agency to start a new program of
warrantless surveillance inside the United States. This is in complete
contravention of the fourth amendment and in complete contravention of
the law at that time. As I am sure many of my colleagues will certainly
recall, this was revealed to the American people 4 years later when it
was reported in the New York Times in 2005. In response, after years of
back and forth contentious debate, Congress passed the FISA Amendments
Act--the bill we are considering on this floor today. We are
considering a reauthorization. This law gave the government new
surveillance authority but also included a sunset provision to ensure
that Congress examines where the law is working and the way it was
intended.
The debate we are having right now on this floor is that
reexamination. I will note that I think it is unfortunate that we are
doing this at the last second. We have known that this intelligence law
is going to expire for years. It was laid out for a multiyear span.
[[Page S8399]]
Certainly, it is irresponsible for this Chamber to be debating this
bill under a falsely created pressure that it needs to be done without
any amendments in order to match the bill from the House. That is a way
of suppressing debate on critical issues here in America.
If you care about the fourth amendment, if you care about privacy,
you should be arguing that we should either create a very short-term
extension in order to have this debate fully or that we should have had
this debate months ago so it could have been done in a full and
responsible manner, with no pressure to vote against amendments in
order to falsely address the issue of partnering with the House bill.
This law included that sunset provision. Now here we are looking at
the extension. It is a single-day debate, crowded here into the
holidays when few Americans will be paying attention. But I think it is
important, nonetheless, for those of us who are concerned about the
boundaries of privacy and believe the law could be strengthened to make
our case here in hopes that at some point we will be able to have the
real consideration these issues merit.
In my opinion, there are serious reforms that need to be made before
we consider renewing this law. This law is supposed to be about giving
our government the tools it needs to collect the communications of
foreigners, outside of our country. If it is possible that our
intelligence agencies are using the law to collect and use the
communications of Americans without a warrant, that is a problem. Of
course, we cannot reach conclusions about that in this forum because
this is an unclassified discussion.
My colleagues Senator Wyden and Senator Udall, who serve on
Intelligence, have discussed the loophole in the current law that
allows the potential of backdoor searches. This could allow the
government to effectively use warrantless searches for law-abiding
Americans. Senator Wyden has an amendment that relates to closing that
loophole.
Congress never intended the intelligence community to have a huge
database to sift through without first getting a regular probable cause
warrant, but because we do not have the details of exactly how this
proceeds and we cannot debate in a public forum those details, then we
are stuck with wrestling with the fact that we need to have the sorts
of protections and efforts to close loopholes that Senator Wyden has
put forward.
What we do know is that this past summer, the Director of National
Intelligence said in a public forum that on at least one occasion the
FISA Court has ruled that a data collection carried out by the
government did violate the fourth amendment. We also know that the FISA
Court has ruled that the Federal Government has circumvented the spirit
of the law as well as the letter of the law. But too much else of what
we should know about this law remains secret. In fact, we have
extremely few details about how the courts have interpreted the
statutes that have been declassified and released to the public. This
goes to the issue of secret law my colleague from Oregon was discussing
earlier. If you have a phrase in the law and it has been interpreted by
a secret court and the interpretation is secret, then you really do not
know what the law means.
The FISA Court is a judicial body established by Congress to consider
requests for surveillance made under the FISA Amendments Act, but,
almost without exception, its decisions, including significant legal
interpretations of the statute, remain highly classified. They remain
secret.
I am going to put up this chart just to emphasize that this is a big
deal. Here in America, if the law makes a reference to what the
boundary is, we should understand how the court interprets that
boundary so it can be debated. If the court reaches an interpretation
with which Congress is uncomfortable, we should be able to change that,
but of course we cannot change it, not knowing what the interpretation
is because the interpretation is secret. So we are certainly
constrained from having the type of debate that our Nation was founded
on--an open discussion of issues.
These are issues that can be addressed without in any way
compromising the national security of the United States. Understanding
how certain words are interpreted tells us where the line is drawn. But
that line, wherever it is drawn, is, in fact, relevant to whether the
intent of Congress is being fulfilled and whether the protection of
citizens under the fourth amendment is indeed standing strong.
An open and democratic society such as ours should not be governed by
secret laws, and judicial interpretations are as much a part of the law
as the words that make up our statute. The opinions of the FISA Court
are controlling. They do matter. When a law is kept secret, public
debate, legislative intent, and finding the right balance between
security and privacy all suffer.
In 2010, due to concerns that were raised by a number of Senators
about the problem of classified FISA Court opinions, the Department of
Justice and the Office of the Director of National Intelligence said
they would establish a process to declassify opinions of the FISA Court
that contained important rulings of law. In 2011, prior to her
confirmation hearing, Lisa Monaco, who is our Assistant Attorney
General for National Security, expressed support for declassifying FISA
opinions that include ``significant instructions or interpretations of
FISA.''
So here we have the situation where the Department of Justice and the
Office of the Director of National Intelligence said they would
establish a process of declassifying opinions. They understood that
Americans in a democracy deserve to know what the words are being
interpreted to mean. We have the Assistant Attorney General for
National Security during her hearings express that she supports
significant instructions or interpretations being made available to the
public. But here we are 2 years later since the 2010 expressions and a
year from the confirmation hearings for Lisa, and nothing has been
declassified--nothing.
The amendment I am offering today sets out a three-step process for
sending the message it is important Americans know the interpretations
of these laws. It does so in a fashion that is carefully crafted to
make sure there is no conflict with national security.
First you call upon the Attorney General to declassify the FISA
report in court of review opinions that include significant legal
interpretations. If the Attorney General makes a decision, however,
that it cannot be declassified--those decisions--in a way that does not
jeopardize national security, then the amendment requires the
administration to declassify summaries of their opinions.
So at the first point, you have the official written court opinions.
But possibly woven into those court opinions are a variety of contexts
about ways and manner of gathering intelligence that pose national
security problems. This amendment says: OK, if that is the case, we
certainly do not want to disclose sensitive information about ways and
means of collecting intelligence, so declassify summaries. That way, we
can understand the legal interpretation without adjoining information
that might represent a national security problem.
This amendment goes further. If the Attorney General decides that not
even a summary can be declassified without compromising national
security, then the amendment requires the administration to report to
Congress regarding the status of its process for declassifying these
opinions--a process the administration has already said it is
undertaking. It just says: Tell us where you are.
It is probably very clear from my discussion that I would prefer that
the opinions, the actual court opinions, be declassified and that
perhaps, if they are sensitive, the national security information would
be redacted. That is the normal process in which documents are
declassified--you black out or remove sections that are sensitive. But
the amendment I am presenting goes further on the side of protecting
national security, saying: You don't have to just redact court
opinions, you can do a summary that addresses significant legal
implications without addressing the ways and means that might be
embedded in a further court decision. Furthermore, Mr. Attorney
General, if you make a decision that not even that is possible, then
update us on the process.
[[Page S8400]]
But the key point is that it requires the Attorney General to make a
decision, a clear decision over the national security balance and
provide what can be done within the context, within the framework of
not compromising our national security.
This is so straightforward that anyone bringing the argument to this
floor that we should not do it because it compromises national security
really has no case to make--absolutely no case to make.
The ACTING PRESIDENT pro tempore. The time of the Senator, under the
order, has expired.
Mr. MERKLEY. My understanding is that 30 minutes was allocated?
The ACTING PRESIDENT pro tempore. Thirty minutes equally divided.
Mr. WYDEN. Mr. President, parliamentary inquiry: Can I yield to
Senator Merkley time from general debate in order to let him complete
his remarks?
The ACTING PRESIDENT pro tempore. With the unanimous consent of the
Senate.
Mr. WYDEN. I ask unanimous consent.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mrs. FEINSTEIN. Well, wait a minute.
The ACTING PRESIDENT pro tempore. Is there objection?
Mrs. FEINSTEIN. I object, if it is time on our side that will be
used.
Mr. MERKLEY. Mr. President, if there is no one else waiting to speak,
I ask unanimous consent to speak as in morning business and will yield
when someone is ready, prepared to speak to the bill.
The ACTING PRESIDENT pro tempore. Is there objection?
The Senator from California.
Mrs. FEINSTEIN. Mr. President, let me do something I do sometimes--
correct myself. If the Senator is offering to use the time on his side,
that is fine with me. As long as it is not using the time for the bill
on our side.
Mr. WYDEN. Mr. President, I think this is acceptable, yes.
Mrs. FEINSTEIN. I thank the Senator.
Mr. MERKLEY. Mr. President, I thank my colleagues for setting out the
parameters. I am going to wrap this up in fairly short order.
I again wish to emphasize that if any of my colleagues would like to
come down and argue that this in any way compromises national security,
I will be happy to have that debate because this has been laid out very
clearly so the Attorney General has complete control over any possible
compromise of information related to national security. Indeed,
although I think it is important for this body to continue to express
that the spirit of what we do in this Nation should be about citizens
to the maximum extent possible having full and clear understanding of
how the letter of the law is being interpreted.
Let me show an example of a passage. Here is a passage about what
information can be collected: `` . . . reasonable grounds to believe
that the tangible things sought are relevant to an authorized
investigation (other than a threat assessment) conducted in accordance
with subsection (a)(2),'' and so on.
Let me stress these words: ``relevant to an authorized
investigation.''
There are ongoing investigations, multitude investigations about the
conduct of individuals and groups around this planet, and one could
make the argument that any information in the world helps frame an
understanding of what these foreign groups are doing. So certainly
there has been some FISA Court decision about what ``relevant to an
authorized investigation'' means or what ``tangible things'' means. Is
this a gateway that is thrown wide open to any level of spying on
Americans or is it not? Is it tightly constrained in understanding what
this balance of the fourth amendment is? We do not know the answer to
that. We should be able to know.
If we believe that an administration and the secret court have gone
in a direction incompatible with our understanding of what we were
seeking to defend, then that would enable us to have that debate here
about whether we tighten the language of the law in accordance with
such an interpretation. Again, is this an open gateway to any
information anywhere in the world, anytime, on anyone or is it a very
narrow gate? We do not know. American citizens should have the ability
to know, and certainly a Senator working to protect the fourth
amendment should know that as well. We have always struck a balance in
this country between an overbearing government and the important
pathway to obtaining information relevant to our national security.
The amendment I am laying forth strikes that balance appropriately.
It urges the process to continue by providing an understanding of what
the secret court interpretations are, which is very important to
democracy. It provides the appropriate balance with national security,
gives clear decisionmaking authority to the Attorney General of this
process, and in that sense it gives the best possible path that honors
national security concerns while demanding transparency and
accountability for this issue of privacy and protection of the fourth
amendment.
The ACTING PRESIDENT pro tempore. The Senator from Oregon.
Mr. WYDEN. For purpose of general debate, how much time remains on
our side and how much time remains under the control of the
distinguished chair of the committee?
The ACTING PRESIDENT pro tempore. The opponents have 140 minutes
remaining; the proponents have 183 minutes remaining.
Mr. WYDEN. I thank the Chair. I will speak out of our time in order
to respond to a couple points. I also wish to commend my colleague
Senator Merkley from Oregon for his excellent statement. He has been
doing yeoman's work in terms of trying to promote accountability and
transparency on this issue and the work he has done in the Senate. I am
going to correct a couple of misconceptions about what has been said
and also talk on behalf of the good work Senator Merkley is doing.
With respect to this amendment I will be offering, I believe the
Senate cannot say we passed the smell test with respect to doing
vigorous oversight if we don't have some sense of how many Americans in
our country who are communicating with each other are being swept up
under this legislation. For purposes of the FISA Amendments Act, I
think we ought to know, generally, how many Americans are being swept
up under the legislation. Oversight essentially would be toothless
without this kind of information.
I wish to correct one misconception with respect to where we are on
the language in the reporting amendment. The distinguished chair of the
committee urged Senators to visit the offices of the Senate Select
Committee on Intelligence to see the documents the chair has stated
relate to intelligence officials who say it is impossible for them to
estimate the number of law-abiding Americans who have had their
communications swept up under the legislation. However, the fact is
that when colleagues read the amendment I will be offering, they will
see I am not requiring anyone to take on a new task of preparing an
estimate of how many law-abiding Americans have been swept up in it.
This is simply a request to the intelligence community, which states
that if any estimate has already been done, that estimate ought to be
provided.
When the distinguished chair of the committee says Senators should go
over to the committee's offices and look at the documents which state
that the intelligence community cannot do a new estimate, I want
Senators to know the language of my amendment does not ask for a new
estimate. In no way does it ask for a new estimate. It simply says: If
an estimate has been done, that estimate ought to be furnished. If no
estimate has been done, the answer to that is simply no. We will be
very clear about it, and the matter will have been clarified. If no
estimate has been done, then fine; the answer is no.
As I indicated earlier, the amendment also requires the intelligence
community to state whether any wholly domestic communications have been
collected. That again can be answered with a yes or no. Finally, it
requires a response as to whether the National Security Agency has
collected personal information on millions of Americans, and that too
is a very straightforward answer.
I think when we talk about this kind of information, we ought to come
back
[[Page S8401]]
to the fact that no sources and methods in the intelligence community
would be compromised. In no way would the operations or the important
work of the intelligence community be interrupted. What it would simply
do is provide us with what I think are the basics that this Senate
needs to be able to say it is doing real oversight over a very broad
area of surveillance law.
I hope Senators will ask themselves as we look at this: Do we in the
Senate know whether anyone has ever estimated how many U.S. phone calls
and e-mails have been warrantless collected under the statute? Does the
Senate know whether any wholly domestic phone calls or e-mails have
been collected under this statute? Does the Senate know whether the
government has ever conducted any warrantless, backdoor searches for
Americans' communication? If not, this is the Senate's chance to answer
that question.
When our constituents come forward and ask us whether the government
is protecting our privacy rights as we protect our security, the
question is: How does the Senator look their constituents in the eye
and tell them they don't know and are not in a position to get
information that is essential to pass the smell test when it comes to
this body doing basic oversight over what is certainly a broad and, for
many Americans, rather controversial surveillance law.
I assume--because we have already heard some characterizations of my
amendment, which are simply and factually incorrect--that we will have
other responses to the reporting amendment in terms of objections. I
have already stated my first concern: The intelligence community
stating that they cannot estimate how many Americans' communications
are collected under key section 702 of FISA. Again, my response is that
when Senators look at the text of the amendment, it does not require
anybody to do an estimate. It simply says that if estimates do exist,
they ought to be provided to the Congress. When it comes to our
oversight responsibilities, I do not think that request is excessive or
unreasonable.
Second, I think we will hear the House and Senate Intelligence
Committees already do oversight of FISA. Every Member of the Congress
has to vote on whether to renew the FISA Amendments Act. Frankly, I
think every Member of this body ought to be able to get a basic
understanding of how the law actually works, and that is not available
today.
Next, we will hear that the intelligence community has already
provided the Congress with lots of information about the FISA
Amendments Act. As the Presiding Officer knows from his service on the
committee, much of that information is in highly classified documents
that are difficult for most Members to review. The reality is most
Members literally have no staff who have the requisite security
clearance in order to read them.
The amendment I am talking about with respect to basic information on
the number of Americans who have had their communications swept up
under FISA--whether Americans with respect to wholly domestic
communications have been swept up under this law--in my view that
information ought to be available to this body in documents Members can
actually access. Frankly, it ought to be available in a single document
which Members can access.
In connection with the discussion about these issues, we will also
hear the answers to these questions should not be made public. The
amendment I am going to be offering with respect to getting a rough set
of estimates as to how many Americans are being swept up under these
authorities--and whether an estimate actually even exists--gives the
President full authority to redact whatever information he wishes from
the public version of the report. Under the amendment I am pursuing,
the executive branch would have full discretion to decide whether it is
appropriate to make any of this information public.
As we ensure more transparency and more accountability with respect
to this information and access to it, no sources or methods which have
to be protected--including important work the intelligence committee is
doing--will be compromised in any way. The last word on this subject is
the call of the President of the United States, who has the full
discretion to decide whether it is appropriate to make any of this
information public.
Finally, we are undoubtedly going to hear that the law is about to
expire and amendments will slow it down. First of all, I think many of
us would rather have had this debate earlier in this session of the
Senate, and had there been more dialog on many of these issues, that
would have been possible. We are where we are, and I think all of us
understand that. We understand this is a huge challenge. The fiscal
cliff is vital in terms of our work this week, but I continue to
believe the other body is perfectly capable of passing this legislation
before the end of the year.
The amendments that are being offered all go to the issue of
transparency and accountability. Not one of those amendments would
jeopardize the ongoing issues and operations which relate to the
sources and methods of the intelligence community. The Congress can
make amendments to improve oversight and still keep this law from
expiring.
With respect to the reporting amendment, I hope the argument made by
the distinguished chair of the committee that the intelligence
community has said they cannot estimate how many Americans'
communications have been collected under section 702--that Senators go
to the offices of the Intelligence Committee. When colleagues look at
the text of the amendment, the amendment does something different than
the issue which has been raised by the distinguished chair of the
committee. The amendment does not require anyone to do an estimate. It
simply says that if an estimate already exists, that estimate ought to
be provided to the Congress.
Let me also make some brief remarks on this issue of secret law that
touches on the point raised by my colleague from Oregon Senator
Merkley, who I think has given a very good presentation on the floor
and has a very good amendment. When the laws are interpreted in secret,
the results frequently fail to stand up to public scrutiny. We have
talked about this on the floor and in the committee and it isn't that
surprising when we think about it. The law-making process in our
country is often cumbersome, it is often frustrating, and it is often
contentious. But over the long run I think we know this process is the
envy of the world because it gives us a chance to have a real debate,
generate support of most Americans because then people see, when they
have had a chance to be a part of a discussion, that they are empowered
in our system of government. On the other hand, when laws are secretly
interpreted behind closed doors by a small number of government
officials without public scrutiny or debate, we are much more likely to
end up with interpretations of the law that go well beyond the
boundaries of what the public accepts or supports. So let's be clear
that when we are talking about public scrutiny and having debates, that
is what allows the American people to see that those of us who are
honored to serve them are following their will.
Sometimes it is entirely legitimate for government agencies to keep
certain information secret. In a democratic society, of course,
citizens rightly expect their government will not arbitrarily keep
information from them, and throughout our history our people have
guarded their right to know. But I think we also know our constituents
acknowledge certain limited exceptions exist in this principle of
openness. For example, most Americans acknowledge that tax collectors
need to have access to some financial information, but the government
does not have the right to share this information openly. So we strike
the appropriate balance on a whole host of these issues on a regular
basis.
Another limited exception exists for the protection of national
security. The U.S. Government has the inherent responsibility to
protect its citizens from threats, and it can do this most effectively
if it is sometimes allowed to operate in secrecy. I don't expect our
generals to publicly discuss the details of every troop movement in
Afghanistan any more than Americans expected George Washington to
publish his strategy for the Battle of Yorktown. By the same token,
American citizens recognize their government may sometimes rely on
secret intelligence collection methods in order to
[[Page S8402]]
ensure national security, ensure public safety, and they recognize
these methods often are more effective when the details--what are the
operations and methods as we characterize them under intelligence
principles--remain secret. But while Americans recognize government
agencies will sometimes rely on secret sources and methods to collect
intelligence information, Americans expect these agencies will at all
times operate within the boundaries of publicly understood law.
I have had the honor to serve on the Intelligence Committee now for
over a decade. I don't take a backseat to anyone when it comes to the
importance of protecting genuine, sensitive details about the work
being done in the intelligence community, particularly their sources
and methods. However, the law itself should never be secret. The law
itself should never be secret because voters have a right to know what
the law says and what their government thinks the text of the law means
so they can make a judgment about whether the law has been
appropriately written, and they can then ratify or reject the decisions
elected officials make on their behalf.
When it comes to most government functions, the public can directly
observe the functions of government and the typical citizen can decide
for himself or herself whether they support or agree with the things
their government is doing. American citizens can visit our national
forests--we take particular pride in them in our part of the country--
and decide for themselves whether the forests are being appropriately
managed. When our citizens drive on the interstate, they can decide for
themselves whether those highways have been properly laid out and
adequately maintained. If they see an individual is being punished,
they can make judgments for themselves whether that sentence is too
harsh or too lenient, but they generally can't decide for themselves
whether intelligence agencies are operating within the law. That is
why, as the U.S. intelligence community evolved over the past several
decades, the Congress has set up a number of watchdog and oversight
mechanisms to ensure intelligence agencies follow the law rather than
violate it. That is why both the House and the Senate have Select
Intelligence Committees. It is also why the Congress created the
Foreign Intelligence Surveillance Court, and it is why the Congress
created a number of statutory inspectors general to act as independent
watchdogs inside the intelligence agencies themselves. All these
oversight entities--one of which I am proud to serve on, the Senate
Select Committee on Intelligence--all of them were created, at least in
part, to ensure intelligence agencies carry out all their activities
within the boundaries of publicly understood law.
But I come back to my reason for bringing up this issue this
afternoon. The law itself always ought to be public and government
officials must not be allowed to fall into the trap of secretly
reinterpreting the law in a way that creates a gap between what the
public thinks the law says and what the government is secretly claiming
the law says. Any time that is being done, it first violates the public
trust, and, second, I have long felt that allowing this kind of gap--a
gap between the government's secret interpretation of the law and what
the public thinks the law is--undermines the confidence our people
are going to have in government. Also, by the way, it is pretty
shortsighted because history shows the secret interpretations of the
law are not likely to stay secret forever, and when the public
eventually finds out government agencies are rewriting these
surveillance laws in secret, the result is invariably a backlash and an
erosion of confidence in these important government intelligence
agencies and the important work, as I noted this morning, our
intelligence officials are doing.
So this is a big problem. Our intelligence and national security
agencies are staffed by exceptionally hard-working and talented men and
women, and the work they do is extraordinarily important. If the public
loses confidence in these agencies, it doesn't just undercut morale, it
makes it harder for these agencies to do their jobs. If we ask the head
of any intelligence agency, particularly an agency that is involved in
domestic surveillance in any way, he or she will tell us that public
trust is a vital commodity and voluntary cooperation from law-abiding
Americans is critical to the effectiveness of their agencies. If
members of the public lose confidence in these government agencies
because they think government officials are rewriting surveillance laws
in secret, those agencies are going to be less effective. I don't want
to see that happen. On my watch, I don't want to be a part of anything
that makes our intelligence agencies less effective.
Officials at these government agencies do not get up in the morning
to do their work with malicious intent. They work very hard to protect
intelligence sources and methods for good reasons. Sometimes what
happens is people lose sight of the difference between protecting
sources and methods, which ought to be kept secret, and the law itself,
which should not be kept secret. Sometimes they even go so far as to
argue that keeping the interpretation of the law secret is actually
necessary because it prevents our Nation's adversaries from figuring
out what our intelligence agencies are allowed to do. My own view is
this is ``Alice in Wonderland'' logic, but if the U.S. Government were
to actually adopt it, then all our surveillance laws would be kept
secret because that would, I guess one could argue, be even more
useful. When Congress passed the Foreign Intelligence Surveillance Act
in 1978, it would have been useful to keep the law secret from the KGB
so Soviet agents wouldn't know whether the FBI was allowed to track
them down. But American laws and the American Constitution shouldn't be
public only when government officials think it is convenient. They
ought to be public all the time. Americans ought to be able to find out
what their government thinks those laws mean, and I think it is
possible to do that while still ensuring that sensitive information--
information about sources and methods and the operations of the
intelligence community--is appropriately kept secret.
My own view is the executive branch in the United States has so far
failed to live up to their promises of greater transparency in this
area, greater commitment to ensuring the public sees how our laws are
being interpreted. As long as there is a gap between the way the
government interprets these laws and what the public sees when people
are sitting at home and looking it up on their laptops, I am going to
do everything I can to reduce that gap and to ensure our citizens,
consistent with our national security, have additional information with
respect to how our laws are interpreted. We can do that while at the
same time protecting the critical work being done by officials in the
intelligence community.
With that, I am happy to yield to the distinguished chairwoman.
The ACTING PRESIDENT pro tempore. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I wish to take a moment to clarify
this question of secret law. This code book I am holding is the law. It
is not secret. This is all of the code provisions which guarantees the
legality of what the intelligence community does. There is a whole
section on congressional oversight. There is a whole section on
additional procedures regarding persons inside the United States and
persons outside the United States. This, in fact, is the law. We can
change the law, and Senator Wyden had something to do with adding
section 704. He did, in fact, change the law to put additional privacy
protections in and those privacy protections are up for reauthorization
in this bill before us.
I wish to address, if I could, what Senator Merkley said in his
comments. I listened carefully. What he is saying is opinions of the
Foreign Intelligence Surveillance Court should, in some way, shape or
form, be made public, just as opinions of the Supreme Court or any
court are made available to the public. To a great extent, I find
myself in agreement with that. They should be. Why can't they be?
Because the law and the particular factual circumstances are mixed
together in the opinion, so the particular facts and circumstances are
possibly classified. Hopefully the opinion can either be written in a
certain way for public release or the Attorney General can be required
to prepare a summary of what that opinion said for release to the
public.
[[Page S8403]]
There is one part of Senator Merkley's amendment which I think we can
work together on regarding the FISA Court opinions, and that is on page
5, lines 3 to 11, where the amendment says:
. . . if the Attorney General makes a determination that a
decision may not be declassified and made available in a
manner that protects the national security of the United
States, including methods or sources related to national
security, the Attorney General shall release an unclassified
summary of such decision.
I have talked to Senator Merkley about this, and I have offered my
help in working to establish this. The problem is, we have 4 days, and
this particular part of the law expires, the FISA Amendments Act. I
have offered to Senator Merkley to write a letter requesting
declassification of more FISA Court opinions. If the letter does not
work, we will do another intelligence authorization bill next year, and
we can discuss what can be added to that bill on this issue.
I am concerned that what is happening is the term ``secret law'' is
being confused with what the Foreign Intelligence Surveillance Court
issues in the form of classified opinions based on classified
intelligence programs. As I have made clear, the law is public and when
possible, the opinions of the Foreign Intelligence Surveillance Court
should be made available to the public in declassified form. It can be
done, and I think it should be done more often.
If the opinion cannot be made public, hopefully a summary of the
opinion can. And I have agreed with Senator Merkley to work together on
this issue.
I ask unanimous consent that all quorum calls during debate on the
FISA bill be equally divided between the proponents and opponents.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The Senator from Oregon.
Mr. WYDEN. Mr. President, just to respond to the points made by the
distinguished chair of the committee--and, by the way, I think the
chair's reference to being willing in the next intelligence
authorization bill to work with those of us--and Senator Merkley has
made good points this afternoon to try to include language in the next
intelligence authorization bill to deal with secret law--I think that
would be very constructive. I appreciate the chair making that
suggestion.
Colleagues may know that under the leadership of the chair of the
committee and the distinguished Senator from Georgia, the vice chair of
the committee, Mr. Chambliss, we were able, late last week, to work out
the disagreements with respect to the intelligence authorization bill
this year. I wish to thank the chair for those efforts. I think we have
a good bill. I think all of us are against leaks. That is what was at
issue. I think we have now dealt with the issue in a fashion so as to
protect the first amendment and the public's right to know, and I
appreciate the chair working with this Senator on it.
I think we have a good intelligence authorization bill now for this
year. I think the chair's suggestion that we look at dealing with this
issue of secret law--in addition, I hope, to adopting the Merkley
amendment--that we deal with it in the next intelligence authorization
bill is constructive. I do want to respond to one point on the merits
with respect to comments made by the distinguished chair on this issue.
The distinguished chair of the committee essentially said the law is
public because the text of the statute is public. That is true. That is
not in dispute. It is true that the text of the law is public. But the
secret interpretations of that law and the fourth amendment from the
FISA Court are not public. The administration pledged 3 years ago to do
something about that. They pledged it in writing in various kinds of
communications, and that still has not been done. That is why this is
an important issue with respect to transparency and accountability.
The distinguished chair of the committee is absolutely correct that
the law is public. The text of the law is public. Nobody disputes that.
But the secret interpretations of the law and the fourth amendment--the
interpretations of the FISA Court are not public, and we have received
pledges now for years that this would change.
I remember--perhaps before the distinguished chair of the committee
was in the Chamber--talking about how Senator Rockefeller and I got a
letter indicating that this was going to be changed and that we were
very hopeful we were going to again get more information with respect
to legal interpretations, matters that ought to be public that do not
threaten sources and methods and operations. We still have not gotten
that. That is the reason why Senator Merkley's work is so important.
I see my friend and colleague. I say to Senator Merkley, the
distinguished chair of the committee has made the point--I think while
the Senator had to be out of the Chamber--that the law is public
because the text of it is public. But what the Senator has so
eloquently described as being our concern is that the opinions of the
FISA Court--their opinions and views about the fourth amendment--are
what has been secret, and the administration has said for years now
they would do something about it.
So the Senator's amendment seeks to give this the strongest possible
push. I think that is why the Senator's amendment is so important. The
Senator is obviously making a lot of headway because the distinguished
chair of the committee has also said this issue of secret law is
something that can be addressed as well in the intelligence
authorization bill.
If we can adopt the Senator's amendment and then move on to the
intelligence authorization bill, that will be a very constructive way
to proceed, very much in the public interest. The Senator is obviously
making headway.
Mr. MERKLEY. Mr. President, if I could interject for a moment.
Mr. WYDEN. Yes, of course.
The ACTING PRESIDENT pro tempore. The Senator from Oregon.
Mr. MERKLEY. I thank my colleague from Oregon for spearheading this
whole conversation about privacy and national security and how the two
are not at war with each other. We are simply looking for appropriate
warrant processes, an assurance to the public that the boundaries of
privacy are being respected. Certainly, a piece of that is the secret
law. I appreciate the comments of the chair of the Intelligence
Committee on this issue. I do feel that in a democracy, understanding
how a statute is interpreted is essential to the conduct of our
responsibility in forging laws and ensuring that the constitutional
vision is protected.
Mr. WYDEN. I thank my colleague. He is making an important point. I
have sat next to Senator Feinstein in the Intelligence Committee now
for 12 years, and I think all of us--and we have had chairs on both
sides of the aisle--understand how important the work of the
intelligence community is. This is what prevents so many threats to our
country from actually becoming realities--tragic realities.
What my friend and colleague from Oregon has hammered home this
afternoon is that if a law is secret and there is a big gap between the
secret interpretation of a law and what the public thinks the law
means--my friend and I represent people who, for example, could be
using their laptop at home in Coos Bay. If they look up a law and they
see what the public interpretation is and they later find out that the
public interpretation is real different than what the government
secretly says it is, when people learn that, they are going to be very
unhappy.
I see my colleague would like some additional time to address this
issue. I am happy to yield to him.
Mr. MERKLEY. I thank Senator Wyden.
The Senator mentioned an Oregonian sitting in Coos Bay working on his
or her laptop and calling the Senator's office and saying: Hey, the law
says the government can collect tangible material related to an
investigation. Does that mean they can collect all of my Web
conversations--knowing that the Web circuits travel around the world
multiple times and at some point they travel through a foreign space.
They ask this question in all sincerity because they care about the
fourth amendment and their privacy.
How much ability do we have to give them a definitive answer on that?
Mr. WYDEN. Absent the information we are seeking to get under the
amendment I am going to offer, I do not
[[Page S8404]]
think it is possible for a Senator to respond to the question.
The issue for an individual Senator would be: Do you know whether
anyone has ever estimated how many U.S. phone calls and e-mails have
been warrantlessly collected under the statute? Do you know whether any
wholly domestic phone calls and e-mails have been collected under this
statute, which I believe is the exact question my colleague from Oregon
has asked.
I do not believe a Member of the Senate can answer that question.
Being unable to answer that question means that oversight, which is so
often trumpeted on both sides of the aisle, is toothless when it comes
to the specifics.
I hope that responds to my colleague's question.
Mr. MERKLEY. Absolutely. I think about other questions our
constituents might ask. They might ask if our spy agencies are
collecting vast data from around the world and they become interested
in an American citizen, can they search all that data without getting a
warrant--a warrant that is very specific to probable cause and an
affirmation.
Again, I suspect the answer we could give to the citizen would be
that we cannot give a very precise evaluation of that, not knowing how
the concept of information related to an investigation has been
interpreted and laid out.
Mr. WYDEN. My colleague is asking a particularly important question
because the Director of the National Security Agency, General
Alexander, recently spoke at a large technology conference, and he said
that with respect to communications from a good guy, which we obviously
interpret as a law-abiding American, and someone overseas, the NSA has
``requirements from the FISA Court and the Attorney General to minimize
that''--to find procedures to protect the individual, the law-abiding
American's rights, essentially meaning, in the words of General
Alexander, ``nobody else can see it unless there's a crime that's been
committed.''
If people hear that answer to my colleague's question--which,
frankly, General Alexander responded to directly--they pretty much say
that is what they were hoping to hear; that nobody is going to get
access to their communications unless a crime has been committed.
The only problem, I would say to my friend, is Senator Udall and I
have found out that is not true. It is simply not true. The privacy
protections provided by this minimization approach are not as strong as
General Alexander made them out to be. Senator Udall and I wrote to
General Alexander, and he said--and I put this up on my Web site so all
Americans can see the response--the general said: That is not really
how the minimization procedures work--these minimization procedures
that have been described in such a glowing way--and that the privacy
protections are not as strong as we have been led to believe. He may
have misspoken and may have just been mistaken, but I am not sure the
record would be correct even now had not Senator Udall and I tried to
make an effort to follow it up.
I can tell the Senator that at this very large technology
conference--this was not something that was classified--at a very large
technology conference recently in Nevada, what the head of the National
Security Agency said was taking place with respect to protecting
people, in response to my colleague's questions: Were their e-mails and
phone calls protected, the general said to a big group: They are,
unless a crime has been committed. The real answer is that is not
correct.
Mr. MERKLEY. I thank my colleague from Oregon for being so deeply
invested in the details of this over many years, utilizing a fierce
advocacy in support of the fourth amendment and privacy to bring to
these debates. I also thank the chair of the Intelligence Committee for
her comments earlier today about secret laws and her own concerns about
that and her willingness to help to work to have the administration
provide the type of information that clarifies how these secret
opinions interpret statutes. My thanks go to the Senator from
California, Mrs. Feinstein.
The PRESIDING OFFICER (Mrs. McCaskill.) The Senator from Oregon.
Mr. WYDEN. I thank my friend. Just one last point with respect to
this technology conference where so many people walked away and thought
their privacy was being protected by strong legal protections. General
Alexander made additional confusing remarks that were in response to
that same question with respect to the protections of law-abiding
people.
General Alexander said, `` . . . the story that we [the NSA] have
millions or hundreds of millions of dossiers on people is absolutely
false.''
Now, I have indicated this morning as well, having served on the
Intelligence Committee for a long time, I do not have the faintest idea
of what anybody is talking about with respect to a dossier. So Senator
Udall and I followed that up as well. We asked the Director to clarify
that statement. We asked, ``Does the NSA collect any type of data at
all on millions or hundreds of millions of Americans?'' So that, too,
is a pretty straightforward question.
The question Senators have been asking about this are not very
complicated. If you are asking whether the National Security Agency is
addressing these privacy issues, I think it is one of the most basic
questions you can ask. Does the National Security Agency collect any
type of data at all on millions or hundreds of millions of Americans?
If the Agency saw fit, they could simply answer that with a yes or no.
Instead, the Director of the Agency replied that while he appreciated
our desire to have responses to those questions on the public record,
there would not be a public response forthcoming.
So to go over the exchange again, the Director of National Security
Agency states that `` . . . the story that we have millions or hundreds
of millions of dossiers on people is absolutely false.'' Senator Udall
and I then asked: Does the NSA collect any type of data at all on
millions or hundreds of millions of Americans? The Agency is unwilling
to answer the question.
So that is what this debate is all about, is reforming the FISA
Amendments Act and, in particular, getting enough information so that
it is possible for the Senate to say to our constituents: We are doing
oversight over this program.
I think right now, based on what we have outlined over the last 3 or
more hours, it is clear that on so many of the central questions--the
gap, for example, between the secret interpretation of the law and the
public interpretation of the law, our inability to find out whether
Americans in their wholly domestic communications have had their rights
violated, how many law-abiding Americans have had their e-mails and
phone calls swept up under FISA authorities, responses to these
questions that stem from public remarks made by intelligence officials
at public conferences--the inability to get answers to these questions
means that this Senate cannot conduct the vigorous oversight that is
our charge.
I expect we will have colleagues coming in. With the weather, it is a
special challenge to get here from our part of the country.
I have a parliamentary inquiry. The distinguished chair of the
committee already, I believe, got unanimous consent that the time in
quorum calls be allocated to both sides. That was my understanding. Is
that correct?
The PRESIDING OFFICER. That is correct.
Mrs. FEINSTEIN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. COONS. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COONS. Madam President, I ask unanimous consent to speak in
general debate as to H.R. 5949 and that my time in so speaking be
charged against Senator Wyden.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COONS. Madam President, in this dangerous world, we have an
obligation to give our intelligence community the tools and the
resources they need to keep us safe. But we also have a fundamental
obligation--just as great, I believe--to protect the civil liberties of
law-abiding American citizens. A right to private communications free
from the prying eyes and
[[Page S8405]]
ears of the government should be the rule, not the exception, for
American citizens on American soil whom law enforcement has no reason
to suspect of wrongdoing. Yet the legislation that we debate on this
Senate floor today, the FISA Amendments Act, or the Foreign
Intelligence Surveillance Act Amendments Act, would reauthorize
surveillance authority that most Americans, most of the Delawareans
whom I represent, would be shocked to learn the government has in the
first place.
Under section 702, FISA permits the government to wiretap
communications in the United States without a warrant if it reasonably
believes the target of the wiretap to be outside of the country and has
a significant purpose of acquiring foreign intelligence information.
Of course, communications are by definition between two or more
people, so even if one participant is outside our country, the person
they are talking to may be here in the United States and they may well
be an American citizen.
Under this legislation, the government is permitted to collect and
store their communications but without clear legal limits on what can
be done with this information. They can keep it for an indefinite
period of time. They can search within these communications and use
them in civilian criminal investigations. Perhaps most concerning of
all to me, they can search information obtained under this act for the
communications of a specific individual U.S. citizen without judicial
oversight and for any reason. If these are all true and this is the
case, then I am gravely concerned.
What is at issue today is the scope of the government's power to
conduct surveillance without getting a warrant. The warrant requirement
is enshrined in our legal system from the very founding of our Nation
because we believe in judicial checks and balances. If the government
suspects wrongdoing by a U.S. citizen, it must convince a judge to
approve a warrant. Warrants are issued each and every day in courts
across the United States for investigation of potential offenses across
the whole spectrum of criminal activity, including crimes affecting
national security. In contrast, surveillance under this act is not
required to meet this standard, leaving American citizens vulnerable to
potentially very real violations of their privacy.
The balance between privacy and security is an essential test for any
government, but it is a vital test for our government and for this
country.
This law, in my view, does not contain some essential checks that are
supposed to protect our privacy.
This law in its current form does contain some checks that I want to
review that are supposed to protect our privacy. It requires that the
government surveillance program must be reasonably designed to target
foreigners abroad and not intentionally acquire wholly domestic
communications. The law requires that a wiretap be turned off when the
government knows it is listening in on a conversation between two U.S.
individuals, and it forbids the government from targeting a foreigner
as a pretext for obtaining the communications of a U.S. national. All
three of these are important privacy protections currently in the law.
The problem is that we here in the Senate--and so the citizens we
represent--don't know how well any of these safeguards actually work.
We don't know how courts construe the law's requirements that
surveillance be, as I mentioned, reasonably designed not to obtain any
purely domestic information. The law doesn't forbid purely domestic
information from being collected.
We know that at least one FISA Court has ruled that a surveillance
program violated the law. Why? Those who know can't say, and average
Americans can't know. We can suspect that U.S. communications
occasionally do get swept up in this kind of surveillance, but the
intelligence community has not--in fact, they say they cannot offer us
any reasonable estimate of the number or frequency with which this has
happened.
The government also won't state publicly whether any wholly domestic
communications have been obtained under this authority, and the
government won't state publicly whether it has ever searched this
surveillance, this body of communications, for the communications of a
specific American without a warrant.
For me, this lack of information, this lack of understanding, this
lack of detail about exactly how the protections in this act have
worked is of, as I said, grave concern. Too often, this body finds
itself in the position of having to give rushed consideration to the
extension of expiring surveillance authorities.
The intelligence communities tell us these surveillance tools are
indispensable to the fight against terrorism and foreign spies, just as
they did during the PATRIOT Act reauthorization debate last year. Also
as in the case of the PATRIOT reauthorization, the expiration of these
authorities, we were told, would throw ongoing surveillance operations
into a legal limbo, that it could cause investigations to collapse or
harm our ability to track terrorists and prevent crimes. All of these
are profound and legitimate concerns. It is precisely because this
legislation is so important that it is all the more deserving of the
Senate's careful, timely, and deliberate attention.
This kind of serious consideration requires more declassified
information on the public record than we have available now. That is
why I am supporting the amendments reported by the Judiciary Committee,
on which I serve, which would help to shine a light on exactly how this
surveillance authority is used. It would direct the intelligence
community inspector general to issue a public report explaining whether
and how the FISA Amendments Act respects the privacy interests of
Americans.
This amendment would also give us another chance to amend this FAA
after we receive this report by adjusting the sunset not to 2017 but to
2015. The new expiration date would align the sunset of the FISA
Amendments Act with those in the PATRIOT Act, allowing for more
comprehensive review of both surveillance authorizations.
Concerns about privacy rights of law-abiding American citizens, as
well as the striking lack of current public information, are also why I
support the amendment of Senator Merkley to direct the administration
to establish a framework for declassifying FISA Court opinions about
the FAA. Secure sources and methods vital to the success of our
intelligence community must be protected. I agree with that, and this
amendment would do that. But the default position here ought to be that
the legal analysis about the government's use of warrantless
surveillance in this country is public rather than hidden from view.
I also strongly support the amendment of Senator Wyden to force the
intelligence community to provide Congress and the public, as
appropriate, with specifics on just how much domestic communication has
been captured under the FAA and what the intelligence community does
with that information. This amendment simply asks for the most basic
information about the practical consequences of the use of the powerful
surveillance authorities in this act. To what extent are these
authorities being used to discover the content of private conversations
by U.S. citizens? What is the order of magnitude? We don't know.
This amendment is simply common sense. The Delawareans for whom I
work and the Nation for whom we work expect that the government cannot
listen in on their phone calls or read their e-mails unless a judge has
signed a warrant. If there is a reason why this requirement is not
consistent with national security, then I say let the intelligence
community make that case and allow us to debate that and consider it in
public. It is simply not acceptable for the intelligence community to
ask us to surrender our civil liberties and then refuse to tell us with
any specificity why we must do so, the context, and the scale of the
exercise of this surveillance authority. In my view, America's first
principles demand better.
I thank Senator Wyden for his leadership on this issue, and I thank
Majority Leader Reid for ensuring that we have the opportunity to
debate and consider these amendments and the very important issues they
reflect here today.
I urge all of my colleagues to consider carefully and then support
these
[[Page S8406]]
amendments to the FAA. We cannot let the impending deadline distract us
from the important opportunity to conduct oversight and implement
responsible reforms. To simply be rushed to passage when we have known
the deadline was approaching for years strikes me as an abrogation of
our fundamental oversight responsibility. This Chamber deserves a full
and informed debate about our intelligence-gathering procedures and
their potentially very real impact on Americans' privacy rights, and we
need it sooner rather than later. These amendments would allow us to
have that conversation and to work together on a path that strikes the
essential balance between privacy and security for the citizens of
these United States.
Madam President, I yield the floor, and I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. PAUL. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. PAUL. Madam President, I rise today in support of the Fourth
Amendment Protection Act. The fourth amendment guarantees the right of
the people to be secure in their persons, their houses, their papers,
and their effects against unreasonable searches and seizures.
John Adams considered the fight against general warrants--or what
they called in those days writs of assistance--to be when ``the child
Independence was born.'' Our independence and the fourth amendment go
hand in hand. They emerge together. To discount or to dilute the fourth
amendment would be to deny really what constitutes our very Republic.
But somehow, along the way, we have become lazy and haphazard in our
vigilance. We have allowed Congress and the courts to diminish our
fourth amendment protections, particularly when we give our papers to a
third party--once information is given to an Internet provider or to a
bank. Once we allowed our papers to be held by third parties, such as
telephone companies or Internet providers, the courts determined we no
longer had a legally recognized expectation of privacy.
There have been some dissents over time. Justice Marshall dissented
in the California Bankers Association v. Schulz case, and he wrote
these words:
The fact that one has disclosed private papers to a bank
for a limited purpose within the context of a confidential
customer-bank relationship does not mean that one has waived
all right to the privacy of the papers.
But privacy and the fourth amendment have steadily lost ground over
the past century. From the California Bankers Association case, to
Smith v. Maryland, to U.S. v. Miller, the majority has ruled that
records, once they are held by a third party, don't deserve the same
fourth amendment protections.
Ironically, though, digital records seem to get less protection than
paper records. As the National Association of Defense Attorneys has
pointed out, ``since the 1870s, a warrant has been required to read
mail, and since the Supreme Court's decision in Katz v. the United
States, a warrant has generally been required to wiretap telephone
conversations. However, under current law, e-mail, text messages, and
other communication content do not receive this same level of
protection.'' Why is a phone call deserving of more protection than our
e-mail or texts?
In U.S. v. Jones, the recent Supreme Court case that says the
government can't put a GPS tracking device on a car without a warrant,
Justice Sotomayor said this:
I for one doubt that people would accept without complaint
the warrantless disclosure to the government of a list of
every Web site they have visited in the last week, or month,
or year. . . . I would not assume that all information
voluntarily disclosed to some member of the public for a
limited purpose is, for that reason alone, disentitled to the
Fourth Amendment protection.
Justices Marshall and Brennan, dissenting in Smith v. Maryland,
emphasized the danger of giving up fourth amendment protections. They
wrote:
The prospect of government monitoring will undoubtedly
prove disturbing even to those with nothing illicit to hide.
Many individuals, including members of unpopular political
organizations or journalists with confidential sources, may
legitimately wish to avoid disclosure of their personal
contacts.
In Miller and in Smith, the Supreme Court held that the fourth
amendment did not protect records held by third parties. Sotomayor
wrote in the Jones case that it may be time to reconsider these cases,
reconsider how they were decided; that their approach is, in her words,
``ill-suited to the digital age, in which people reveal a great deal of
information about themselves to third parties in the course of carrying
out mundane tasks.''
Today, this amendment that I will present, the Fourth Amendment
Protection Act, does precisely that. This amendment would restore the
fourth amendment protection to third-party records. This amendment
would simply apply the fourth amendment to modern means of
communications. E-mailing and text messaging would be given the same
protections we currently give to telephone conversations.
Some may ask, well, why go to such great lengths to protect records?
Isn't the government just interested in the records of bad people?
To answer this question, one must imagine their Visa statement and
what information is on that Visa statement. From our Visa statement,
the government may be able to ascertain what magazines we read; whether
we drink and how much; whether we gamble and how much; whether we are a
conservative, a liberal, a libertarian; whom we contribute to; what our
preferred political party is; whether we attend a church, a synagogue,
or a mosque; whether we are seeing a psychiatrist; and what type of
medications we take. By poring over a Visa statement, the government
can pry into every aspect of one's personal life. Do we really want to
allow our government unfettered access to sift through millions of
records without first obtaining a judicial warrant?
If we have people who are accused of committing a crime, we go before
a judge and get a warrant. It is not that hard. I am not saying the
government wouldn't be allowed to look through records. I am saying
that the mass of ordinary, innocent citizens should not have their
records rifled through by a government that does not first have to ask
a judge for a warrant before they look at personal records.
We have examples in the past of abuses by our own country. During the
civil rights era, the government snooped on activists. During the
Vietnam era, the government snooped on antiwar protesters. In a digital
age, where computers can process billions of bits of information, do we
want the government to have unfettered access to every detail of our
lives? From a Visa statement, the government can determine what
diseases one may or may not have; whether one is impotent, manic,
depressed; whether someone is a gun owner and whether he or she buys
ammunition; whether one is an animal rights activist, an environmental
activist; what books we order, what blogs we read, and what stores or
Internet sites we look at. Do we really want our government to have
free and unlimited access to everything we do on our computers?
The fourth amendment was written in a different time and a different
age, but its necessity and its truth are timeless. The right to privacy
and, for that matter, the right to private property are not explicitly
mentioned in the Constitution, but the ninth amendment says that the
rights not stated are not to be disparaged or denied.
James Otis--arguably the father of the fourth amendment--put it best
when he said:
One of the most essential branches of English liberty is
the freedom of one's house. A man's house is his castle; and
whilst he is quiet, he is as well guarded as a prince in his
castle.
Today's castle may be an apartment, and who knows where the
information is coming from. It may be paper in one's apartment or it
may be bits of data stored who knows where, but the concept that
government should be restrained from invading a sphere of privacy is a
timeless concept.
Over the past few decades, our right to privacy has been eroded. The
Fourth Amendment Protection Act would go a long way toward restoring
this cherished and necessary right. I hope my colleagues will consider
supporting, defending, and enhancing the fourth amendment, bringing it
into a modern
[[Page S8407]]
age where modern electronic and computer information and communications
are once again protected by the fourth amendment.
Madam President, I reserve the remainder of my time.
Mrs. FEINSTEIN. Madam President, is the Senator going to call up his
amendment?
Amendment No. 3436
Mr. PAUL. Madam President, I ask unanimous consent to call up my
amendment, which is at the desk.
The PRESIDING OFFICER. Without objection, the clerk will report.
The assistant legislative clerk read as follows:
The Senator from Kentucky [Mr. Paul], for himself and Mr.
Lee, proposes an amendment numbered 3436.
Mr. PAUL. Madam President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To ensure adequate protection of the rights under the Fourth
Amendment to the Constitution of the United States)
At the appropriate place, insert the following:
SEC. ___. FOURTH AMENDMENT PRESERVATION AND PROTECTION ACT OF
2012.
(a) Short Title.--This section may be cited as the ''Fourth
Amendment Preservation and Protection Act of 2012''.
(b) Findings.--Congress finds that the right under the
Fourth Amendment to the Constitution of the United States of
the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures is
violated when the Federal Government or a State or local
government acquires information voluntarily relinquished by a
person to another party for a limited business purpose
without the express informed consent of the person to the
specific request by the Federal Government or a State or
local government or a warrant, upon probable cause, supported
by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
``(c) Definition.--In this section, the term ``system of
records'' means any group of records from which information
is retrieved by the name of the individual or by some
identifying number, symbol, or other identifying particular
associated with the individual.
(d) Prohibition.--
(1) In general.--Except as provided in paragraph (2), the
Federal Government and a State or local government is
prohibited from obtaining or seeking to obtain information
relating to an individual or group of individuals held by a
third-party in a system of records, and no such information
shall be admissible in a criminal prosecution in a court of
law.
(2) Exception.--The Federal Government or a State or local
government may obtain, and a court may admit, information
relating to an individual held by a third-party in a system
of records if--
(A) the individual whose name or identification information
the Federal Government or State or local government is using
to access the information provides express and informed
consent to the search; or
(B) the Federal Government or State or local government
obtains a warrant, upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Madam President, I rise in opposition to this
amendment. This amendment is extraordinarily broad. It is much broader
than FISA, and in the course of my remarks, I would hope to address how
broad it is. It essentially bars Federal, State, and local governments
from obtaining any information relating to an individual that is held
by a third party unless the government first obtains either a warrant
or consent from the individual. This is also not germane to FISA. It
has not been reviewed by the Judiciary Committee, which would have
jurisdiction over this matter. For that reason alone, I would vote
against it. Also, it impedes the timely reauthorization of the FISA
Amendments Act.
I also oppose the substance of the amendment. The amendment is titled
the ``Fourth Amendment Preservation and Protection Act.'' In reality,
it seeks to reverse over 30 years of Supreme Court precedent
interpreting the fourth amendment.
In 1967 the Supreme Court established its reasonable expectation of
privacy test under the fourth amendment, in the case of Katz v. United
States. Nine years later, in a case known as U.S. v. Miller, the
Supreme Court held:
[T]he Fourth Amendment does not prohibit the obtaining of
information revealed to a third party and conveyed by him to
Government authorities.
So already you have a Supreme Court case saying that the fourth
amendment does not prohibit the use of this kind of information by the
government.
The Miller case involved the government obtaining account records
from a bank. But in 1979, just 3 years after Miller, the Supreme Court
took up the issue of third-party collection in a case involving the
installation and use of pen registers, which are electronic devices
that enable law enforcement to collect telephone numbers dialed from a
particular phone line without listening to the content of those calls.
The 1973 case is known as Smith v. Maryland, and in it the Court held:
[W]e doubt that people in general entertain any actual
expectation of privacy in the numbers they dial. All
telephone users realize that they must ``convey'' phone
numbers to the telephone company, since it is through
telephone company switching equipment that their calls are
completed. All subscribers realize, moreover, that the phone
company has facilities for making permanent records of the
numbers they dial, for they see a list of their long-distance
(toll) calls on their monthly bills. . . . Telephone users .
. . typically know that they must convey numerical
information to the phone company; that the phone company has
facilities for recording this information; and that the phone
company does in fact record this information for a variety of
legitimate business purposes. Although subjective
expectations cannot be scientifically gauged, it is too much
to believe that telephone subscribers, under these
circumstances, harbor any general expectation that the
numbers they dial will remain secret. . . . This Court
consistently has held that a person has no legitimate
expectation of privacy in information he voluntarily turns
over to third parties.
More recently, in the Court's 2012 decision in U.S. v. Jones, some
Justices have questioned whether the time has come to revisit Miller
and Smith in some form. Now, perhaps they are right, but this amendment
isn't the form they had in mind. And this isn't the time to do so.
This amendment is so broad that the police could not use cell phone
data to find a missing or kidnapped child without a warrant or the
consent of the missing child--impossible to get. Similarly, they could
not ask the phone company to provide the home address of a terrorist,
drug dealer, or other criminal without consent or warrant. They could
not ask a bank if such criminals had recently deposited large sums of
money. In fact, as written, this amendment would prohibit law
enforcement from looking up the name, address, and phone number of a
criminal suspect, witness, or any other person online unless they
obtained a warrant or the consent of the criminal suspect. As you can
see, the amendment is too broad.
As I have already stated, the FAA authorities expire in 4 days. If
those authorities are allowed to lapse, our intelligence agencies will
be deprived of a critical tool that enables those agencies to acquire
vital information about international terrorists and other important
targets overseas, plus what they may be plotting in the United States.
It is imperative that we pass a clean reauthorization of these
authorities without amendments that will hamper passage in the House.
I urge my colleagues to oppose this amendment.
The PRESIDING OFFICER. The Senator from Vermont.
Amendment No. 3437
Mr. LEAHY. Madam President, I ask unanimous consent to set aside the
pending amendments and call up my amendment, which is at the desk.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Vermont [Mr. Leahy] for himself, Mr.
Durbin, Mr. Franken, Mrs. Shaheen, Mr. Akaka, and Mr. Coons,
proposes an amendment numbered 3437.
Mr. LEAHY. I ask unanimous consent that reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: In the nature of a substitute)
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``FAA Sunsets Extension Act of
2012''.
SEC. 2. EXTENSION OF FISA AMENDMENTS ACT OF 2008 SUNSET.
(a) Extension.--Section 403(b)(1) of the FISA Amendments
Act of 2008 (Public Law
[[Page S8408]]
110-261; 50 U.S.C. 1881 note) is amended by striking
``December 31, 2012'' and inserting ``June 1, 2015''.
(b) Technical and Conforming Amendments.--Section 403(b)(2)
of such Act (Public Law 110-261; 122 Stat. 2474) is amended
by striking ``December 31, 2012'' and inserting ``June 1,
2015''.
(c) Orders in Effect.--Section 404(b)(1) of such Act
(Public Law 110-261; 50 U.S.C. 1801 note) is amended in the
heading by striking ``December 31, 2012'' and inserting
``June 1, 2015''.
SEC. 3. INSPECTOR GENERAL REVIEWS.
(a) Agency Assessments.--Section 702(l)(2) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(l)(2))
is amended--
(1) in the matter preceding subparagraph (A), by striking
``authorized to acquire foreign intelligence information
under subsection (a)'' and inserting ``with targeting or
minimization procedures approved under this section'';
(2) in subparagraph (C), by inserting ``United States
persons or'' after ``later determined to be''; and
(3) in subparagraph (D)--
(A) in the matter preceding clause (i), by striking ``such
review'' and inserting ``review conducted under this
paragraph'';
(B) in clause (ii), by striking ``and'' at the end;
(C) by redesignating clause (iii) as clause (iv); and
(D) by inserting after clause (ii), the following:
``(iii) the Inspector General of the Intelligence
Community; and''.
(b) Inspector General of the Intelligence Community
Review.--Section 702(l) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1881a(l)) is amended--
(1) by redesignating paragraph (3) as paragraph (4); and
(2) by inserting after paragraph (2) the following:
``(3) Inspector general of the intelligence community
review.--
``(A) In general.--The Inspector General of the
Intelligence Community is authorized to review the
acquisition, use, and dissemination of information acquired
under subsection (a) in order to review compliance with the
targeting and minimization procedures adopted in accordance
with subsections (d) and (e) and the guidelines adopted in
accordance with subsection (f), and in order to conduct the
review required under subparagraph (B).
``(B) Mandatory review.--The Inspector General of the
Intelligence Community shall review the procedures and
guidelines developed by the intelligence community to
implement this section, with respect to the protection of the
privacy rights of United States persons, including--
``(i) an evaluation of the limitations outlined in
subsection (b), the procedures approved in accordance with
subsections (d) and (e), and the guidelines adopted in
accordance with subsection (f), with respect to the
protection of the privacy rights of United States persons;
and
``(ii) an evaluation of the circumstances under which the
contents of communications acquired under subsection (a) may
be searched in order to review the communications of
particular United States persons.
``(C) Consideration of other reviews and assessments.--In
conducting a review under subparagraph (B), the Inspector
General of the Intelligence Community should take into
consideration, to the extent relevant and appropriate, any
reviews or assessments that have been completed or are being
undertaken under this section.
``(D) Report.--Not later than December 31, 2014, the
Inspector General of the Intelligence Community shall submit
a report regarding the reviews conducted under this paragraph
to--
``(i) the Attorney General;
``(ii) the Director of National Intelligence; and
``(iii) consistent with the Rules of the House of
Representatives, the Standing Rules of the Senate, and Senate
Resolution 400 of the 94th Congress or any successor Senate
resolution--
``(I) the congressional intelligence committees; and
``(II) the Committees on the Judiciary of the House of
Representatives and the Senate.
``(E) Public reporting of findings and conclusions.--In a
manner consistent with the protection of the national
security of the United States, and in unclassified form, the
Inspector General of the Intelligence Community shall make
publicly available a summary of the findings and conclusions
of the review conducted under subparagraph (B).''.
SEC. 4. ANNUAL REVIEWS.
Section 702(l)(4)(A) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1881a(l)(4)(A)), as
redesignated by section 3(b)(1), is amended--
(1) in the matter preceding clause (i)--
(A) in the first sentence--
(i) by striking ``conducting an acquisition authorized
under subsection (a)'' and inserting ``with targeting or
minimization procedures approved under this section''; and
(ii) by striking ``the acquisition'' and inserting
``acquisitions under subsection (a)''; and
(B) in the second sentence, by striking ``The annual
review'' and inserting ``As applicable, the annual review'';
and
(2) in clause (iii), by inserting ``United States persons
or'' after ``later determined to be''.
Mr. LEAHY. Madam President, when Congress passed the FISA Amendments
Act of 2008, it granted the Government sweeping new electronic
surveillance powers which, if abused or misused, could impinge on the
privacy rights of Americans. Congress enacted these controversial
authorities with the understanding that it would re-examine these
provisions within four years, and determine whether to allow these
authorities to continue.
While there is no question that the surveillance powers established
in the FISA Amendments Act have proven to be extraordinarily important
for our national security, it is equally clear to me that those broad
powers must continue to come with rigorous oversight and strong privacy
protections.
That is why the Senate should adopt the Senate substitute amendment
that would allow the Government to continue using these authorities,
but for a period of time that ensures strong and independent oversight.
This amendment was considered and reported favorably by the Senate
Judiciary Committee last July. I urge Senators to support this
reasonable and commonsense measure. I call on all Senators who talk
about accountability and oversight to join with us to adopt this better
approach to ensuring our security and our privacy.
Many of us will remember that the FISA Amendments Act was originally
passed to clean up what one Bush administration lawyer called the
``legal mess'' of the warrantless wiretapping program, which undermined
the privacy rights and civil liberties of countless Americans. More
than that, the warrantless wiretapping program undermined the public's
trust in our Government, and in the intelligence community's ability to
police itself.
During the debate on the FISA Amendments Act in 2007 and 2008, I
worked with others on the Judiciary Committee to ensure that important
oversight, accountability, and privacy protections were put into place,
including express prohibitions on the warrantless wiretapping of U.S.
persons or any individual located here in the United States, as well as
a prohibition against the practice of so-called ``reverse targeting.''
I am convinced that the oversight and accountability provisions that
we included in the original legislation have helped to prevent the
abuse of these surveillance tools. Based on my review of information
provided by the Government, and after a series of classified briefings,
I have not seen evidence that the law has been abused, or that the
communications of U.S. persons are being intentionally targeted. But
let's be absolutely clear, my conclusion is based on the information I
have seen to date, and current compliance does not guarantee future
compliance. We must not relax our oversight efforts, and I believe that
there is more that can be done to protect against future abuse and
misuse.
In June, after the Senate Intelligence Committee originated the
Senate bill to reauthorize and extend FISA, Senator Grassley and I
asked for a sequential referral, just as I did in 2008, to allow the
Judiciary Committee to consider and improve this important legislation.
The bill that was approved by the Intelligence Committee provided for a
general and unfettered extension of the expiring provisions until June
2017.
I hoped that the Senate Judiciary Committee would improve on that,
and we did. I worked with Senator Feinstein, Chair of the Senate
Intelligence Committee, to craft a compromise to shorten the sunset to
2015 and to add some accountability and oversight provisions. I
appreciated the Senator from California's commitment to helping to
improve this sensitive and important legislation and her strong words
of support for the Senate Judiciary Committee bill. The Senate
Judiciary Committee adopted the substitute and reported the Senate bill
to the Senate promptly last July. That is the bill that I am offering,
the Senate bill. There is no reason for us to merely rubberstamp the
House bill. We have a better bill with better provisions and more
accountability and oversight. I am pleased that Senators Durbin,
Franken, Shaheen, Akaka, and Coons have joined me as cosponsors of this
amendment.
The Senate bill that the Judiciary Committee adopted, and that I am
offering to improve on the House bill
[[Page S8409]]
that has been brought before us, provides for a shorter sunset of the
expiring surveillance authorities. The House bill's sunset is longer
than that adopted by the Senate Select Committee on Intelligence and
unnecessarily extended. The Senate bill I offer provides for extending
FISA authorities, but would sunset them in June 2015. This will allow
the existing programs to continue but ensures that we revisit them in a
timely fashion as more information becomes available. It would also
align with the June 2015 sunset of certain provisions of the USA
PATRIOT Act, thereby enabling Congress to evaluate all of the expiring
surveillance provisions of FISA together. This is an approach that
Chairman Feinstein and I both supported during the PATRIOT Act
reauthorization debate in 2011, along with many members of the
Judiciary and Intelligence Committees. This is the position the
intelligence community and the administration supported then and as
recently as last year. It is the right position and the right sunset,
and that is why the Senate bill should include it and will if my
amendment is adopted.
As we have seen through our experience with the USA PATRIOT Act,
sunsets are important oversight tools. Sunsets force Congress to re-
examine carefully the surveillance powers that have been authorized. If
we know we have to actually look at it because it is going to run out,
what happens is amazing--Senators in both parties actually look at it.
More importantly, sunsets force the administration to provide full and
accurate information to justify to Congress the reauthorization of
significant authorities. Any administration is going to be willing to
kick the ball down the road if they don't have to do it; if they have a
sunset, they do. The last thing we want is for the NSA and the FBI to
take for granted that they will have these powers, especially when the
misuse or abuse of these powers could significantly impact the
constitutional liberties of Americans. Likewise, we must never take for
granted our constitutional liberties, and we should not shy away from
our duty as Senators to protect against any such misuse or abuse.
I acknowledge and appreciate those in the intelligence community who
work very hard to ensure compliance with our laws and Constitution. But
it is also important to note that there has never been a comprehensive
review of these authorities by an independent Inspector General that
would provide a complete perspective on how these authorities are being
used, and whether they are being used properly.
The DOJ Inspector General recently completed a review of the FBI's
implementation of the FISA Amendments Act, but this was limited in
scope--not only because it was just limited to the FBI, and not any
other part of the intelligence community, but also because it was
limited in scope to the period ending in early 2010. Notably, this was
the first report ever issued by the DOJ Inspector General regarding the
FBI's use of Section 702 authorities, and it was issued in September
2012--after the Senate Intelligence and Judiciary Committees reported
their bills, and after the House voted to pass its clean extension.
Even more troubling is the fact that we still have not received a
report from the NSA Inspector General that fully assesses the NSA's
compliance with its targeting and minimization procedures, or the
limitations we put in place to protect the privacy of Americans. I am
told that a preliminary report on the adequacy of the management
controls at the NSA is being finalized--but it is just that: a
preliminary report, and not an actual, final, comprehensive, or
definitive assessment of whether NSA analysts are complying with the
procedures and rules that they have put into place. Indeed, the NSA
Inspector General's office has acknowledged that there is more work to
be done, and that this review--once completed--will just be a first
step. Moreover, as with the DOJ Inspector General's report, this review
is limited just to a single agency, and does not incorporate any review
or assessment of any information-sharing that might be taking place.
To address the limitations faced by the IGs for individual agencies,
our Senate bill as embodied in my substitute amendment adds some
commonsense improvements to the oversight provisions in the FISA
Amendments Act, including a comprehensive independent review by the
Inspector General of the Intelligence Community. The Office of the
Inspector General of the Intelligence Community was established in 2010
and has the unique ability to provide a comprehensive assessment of the
surveillance activities across the intelligence community, rather than
just a limited view of a single agency. An independent review by the
Inspector General for the Intelligence Community could answer some
remaining questions about the implementation of the FISA Amendments
Act, particularly with respect to the protection of the privacy rights
of U.S. persons. I also believe that an unclassified summary of such an
audit should be made public in order to provide increased
accountability directly to the American people.
These are reasonable improvements to the law that I urge all Senators
to support. We often hear Senators speak about the need for vigorous
and independent oversight of the Executive Branch, the need to support
independent inspectors general who are not beholden to a particular
agency, and the need for Congress to conduct its own independent
reviews as a check on the power of the Executive. So I ask those same
Senators this question: When Congress has authorized the use of
expansive and powerful surveillance tools that have the potential to
impact so significantly the constitutional rights of law-abiding
Americans, isn't this exactly the type of situation that calls for that
sort of vigorous and independent oversight? Put simply, someone needs
to be watching the watchers--and watching them like a hawk. I call upon
all Senators, on both sides of the aisle, who talk about accountability
and oversight to join with us to adopt this better approach to ensuring
our security and our privacy by adopting the Senate bill as embodied in
the substitute amendment.
No one can argue that shortening the sunset or adding oversight
provisions somehow hampers the Government's ability to fight terrorism
or somehow harms national security. That is not true. All Senators
should know that neither the 2015 sunset date nor the added oversight
provisions have any operational impact on the work of the intelligence
community. No one--I repeat, no one from the administration has ever
said to me that these provisions cause any operational problems for the
intelligence community, and to suggest otherwise now is simply not
accurate.
In fact, when the Senate Select Committee on Intelligence reported
its bill last year that bill had exactly the same sunset date of June
2015 that is in the substitute amendment. I was encouraged that Senator
Feinstein supported this 2015 sunset date when the Judiciary Committee
approved this substitute amendment, and noted then that this substitute
amendment does not cause any operational problems for the intelligence
community.
So where does that leave us? It leaves us with a simple choice. We
can enable the intelligence community to continue using these
authorities until 2015, while adding commonsense improvements that will
help us to conduct vigorous oversight. Or the Senate can abdicate its
responsibilities and rubberstamp the House bill that extends these
powerful authorities for another five years, without a single
improvement in oversight or accountability--even though we may not have
all the information we need to make an informed determination.
As an American, and as a Vermonter, the choice is simple for me. We
have an obligation to ensure that these expansive surveillance
authorities are accompanied by safeguards. We can fulfill our duty to
protect the privacy and civil liberties of the American public, while
continuing to provide the intelligence community with tools to help
keep America safe. That is what the Senate bill as embodied in the
substitute amendment accomplishes. I urge Senators to choose this
balanced, commonsense approach, and to support adopt the Senate
substitute to the over-expansive House bill.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Madam President, in listening to the distinguished
chairman of the Judiciary Committee and also reading the amendment, I
want to
[[Page S8410]]
make clear that there are parts of this amendment to which I would
agree. However, the House bill is now before us, which would extend the
sunset of the FISA Amendments Act 5 years versus 2\1/2\ years in the
Leahy Amendment. So, before us is the 5-year authorization period which
the House has already passed. We have 4 days before the FISA Amendments
Act essentially end. I cannot support that shorter time but I support
the 5-year extension.
The part of the amendment of the chairman of the Judiciary Committee
that I do agree with is the expanded mission of the inspector general
of the Intelligence Community. Since the chairman is now becoming the
President in rapid promotion, I will be happy to address my remarks to
him.
(The PRESIDENT pro tempore assumed the Chair.)
Mr. President, Mr. Chairman, I want you to know we have spent large
amounts of time on the particular issue of Section 702 reporting. For
example, the law requires semiannual Attorney General and DNI
assessments of section 702. Every 6 months they assess compliance with
the targeting and minimization procedures. The law also requires the
inspector general of Justice and the IG of every element of the
intelligence community authorized to acquire foreign intelligence
information to review compliance within Section 702. In addition, the
IGs are required to review the number of disseminated intelligence
reports containing a reference to a U.S.-person identity and the number
of U.S. person identities subsequently disseminated. The law also
already requires annual reviews by agency heads of Section 702. It also
requires a semiannual Attorney General report on Title VII every 6
months to fully inform the congressional Intelligence and Judiciary
Committees. And there is another semiannual report on FISA required for
the Attorney General to submit a report to the committees. Finally,
there are requirements for the provision of documents relating to
significant construction or interpretation of FISA by the FISA Court.
So it is clear that there are many reporting requirements on FISA and
specifically section 702. I would also add that the Intelligence
Committee has had hearings with the DNI, with Attorney General Holder,
with Director of FBI Mueller on how Section 702 is carried out. I will
also tell you the Intelligence Committee staff spends countless hours
going over the reports in meetings with representatives of the
departments. However, I would say to Chairman Leahy that what I would
like to do is look at your amendment and see how it compares to what is
currently being done and possibly add some parts of your amendment to
our authorization bill next year.
I would urge that we have your staff and the Intelligence Committee
staff work together to see what we can do. The real reason to oppose
all of this at this time is that these authorities expire in 4 days. I
remember the vote in the Judiciary Committee on this amendment very
well. Had the bill come to the floor over the summer, after it passed
out of Committee, then we might have had time to convince the House to
consider these changes to current law. But here we are where we have a
5-year House bill in front of us and only 4 days to extend the sunset.
As I am opposing all amendments, I would respectfully and, not quite
sorrowfully but almost, have to oppose your amendment with the caveat I
added, Mr. Chairman.
In deference to you and your chairmanship of the Judiciary Committee,
the Intelligence Committee staff will work closely with yours to see if
there is anything that needs to be added to a future intelligence
authorization bill.
I thank you for that and I yield the floor.
The PRESIDENT pro tempore. The Senator from Oregon.
Mr. WYDEN. Mr. President, first, I strongly support your amendment,
given how little most Members of Congress know about the actual impact
of the law. The shorter extension period as envisioned by the
distinguished chairman of the Judiciary Committee makes a lot of sense.
I also think it makes sense to have the intelligence community
inspector general conduct an audit on how FISA Amendment Act authority
has been used.
Once again, we have had this discussion about how much everybody
already knows about how the FISA Amendments Act affects the operations
of this program on law-abiding Americans. I would have to respectfully
disagree. I asked Senators, as we touched on this in the course of the
afternoon, whether they know if anyone has ever estimated how many U.S.
phone calls and e-mails have been warrantlessly collected under this
statute?
Senator Udall and I have asked this very simple question: Has there
been an estimate--not whether there is going to be new work, whether
they are going to be difficult assignments. We have asked whether there
has ever been an estimate of how many U.S. phone calls have been
warrantlessly collected under the statute. We were told in writing we
were not going to be able to get that information.
I think Senators ought to also ask themselves whether they know if
any domestic phone calls and e-mails, what are wholly domestic
communications, have been conducted under this statute. I think they
will also find they do not know the answer to this question. I think
Senators also would want to know whether the Government has ever
conducted any warrantless backdoor searches for Americans'
communications.
So when we have the argument that has now been advanced several times
in the course of the day that we already know so much, we do not need
all these amendments, it is just going to delay passage of the
legislation, I urge people--go to my Web site, in particular--to look
at what we have learned from the intelligence community, which is the
response to request after request, particularly requests of a
tripartisan group of Senators asking yes or no questions: Has there
been an estimate? For example, how many law abiding Americans have had
their communications swept up into these FISA authorities? Our
inability to get that answer makes it clear that when one talks about
robust oversight under this legislation, the reality is that there is
enormous lack of specifics with respect to how this legislation
actually works.
I would only say in response to the amendment offered by the
Presiding Officer, Senator Leahy, the chairman of the Judiciary
Committee, I think his amendment is very appropriate. Given how little
is known, to me it is one of the fundamental pillars of good oversight
that we do not grant open-ended kind of authorizations when we lack so
much fundamental information about how this program works, particularly
how it would affect law-abiding Americans.
With that, I yield back.
Mrs. FEINSTEIN. Mr. President, I suggest the absence of a quorum.
The PRESIDENT pro tempore. The clerk will call the roll.
The bill clerk proceeded to call the roll.
The PRESIDENT pro tempore. The majority leader.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDENT pro tempore. Without objection, it is so ordered.
____________________